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REPORTS 


CASES   DETERMINED 


COURT  OF  CHANCERY, 


j^.- 


STATE  OF  MICHIGAN. 


•^■ 


BY    E.    BURKE    HARRINGTOx\, 


f;X'/  COU^-rSBLLOR  AT  LAW. 


DETROIT: 

FAeC  AND  HARMON,  PRINTERS. 

1845. 


Vi\k>;*\\     \\ 


v.-  -J    ^ 


» 


Enlered  according  to  Act  of  Congress,  la  the  ywr  1846, 

By  Henry  N.  Waiker, 

In  th«  CletK's  office  of  Iho  District  Court  of  tlia  District  of  Michigan 


'r*: 


P 


■■'4- 


^ 


0 


CASES 

<r 

_5» 

ARGUED  AND  DETERMINED 

CO 

IS   THE 

COURT  OF  CHANCERY, 

FOR  THE 

STATF,  OF  MICHIGAN. 

ELON  FARNSWORTH,  Chancellok. 

\ 


P  il  E  F  A  C  E  . 


The  volume  which  is  now  presented  to  the  public  contains  all  the 
decisions  made  by  the  Hon.  Elon  Farnsworth  whileacting  as  Chancel- 
lor, which  have  been  preserved.  Prior  to  the  year  1830,  there  was  no 
Court  of  Equity  distinct  and  separate  from  the  courts  of  law.  The  Or- 
dinance of  Congress  of  1787,  for  the  government  of  the  Territory 
Northwest  of  the  River  Ohio,  did  not  establish  a  distinct  and  separate 
tribunal  for  the  exercise  of  powers  usually  conferred  upon  Courts  of 
Chancery.     Neither  did  it  vest  in  the  courts  of  law  any  authority  to 
exercise  such  powers.     The  provision  relative  to  the  legislative  pow- 
er, authorized  the  Governor  and  Judges,  to  adopt  such   laws  of  the 
original  states  as  might  be  necessary  and  best  suited  to  the  circunf- 
stances  of  the  district,  which  were  to  be  in  force  unless  disapproved 
of  by  Congress.     Among  the  earliest  acts  of  the  Territorial  Govern- 
ment of  Michigan,  was  one  relative  to  the  jurisdiction  of  the  courts, 
which  was  passed  July,  180.5,  and  declared  that  the  Supreme  Court 
should  have  original  and  exclusive   jurisdiction    in  all  cases,  both  in 
law  and  equity,  where  the  title  of  lands  was  in  question,  but  no  suit 
in   equity  should  be  sustained  in  any  case  when  adequate  remedy 
could  be  had  at  law.     The  same  statute  provided  that  '♦  on  the  trial 
of  cases  in  equity,  oral  testimony  and  the  examination  of  witnesses 
in  open  court  should  be  admitted.  "     In  1820  the  Governor  and  Judg- 
es, who  were  still  vested  with  the  legislative  power,  passed  an  act  di- 
recting the  mode  of  proceeding  in  suits  in  Chancery.     By  this  law 
the  County  Courts  of  the  several  counties  were  invested  with  juris- 
diction in  all  cases  properly  cognizable  in  a  Court  of  Chancery,  in 
which  plain,  adequate,  and  complete  remedy,  could  not  be  had  at  law, 
where  the  title  to   land  was  not  in  question,  and  when  the   sum    or 
matter  in  dispute  did  not 'exceed  the  sum  of  one  thousand  dollars; 
and  the  Supreme  Court  had  jurisdiction  in  all  cases  where  the  ti- 
tle of  lands  was  in  question,  and    where  the  sum,  or  matter  in  dis- 


iv  PREFACE. 

pute  exceeded  tJie  sum  of  one  thousand  dollars.  The  Supreme 
Court  had  also  appellate  jurisdiction  in  all  cases  heard  and  determin- 
ed in  the  County  Courts. 

In    1823,  some   doubts  having  arisen   as   to  the  powers  of   the 
courts,  Congress  passed  an   act   declaring   "  that  the  powers  and 
duties   of  the  judges  of  the   said  Territory  should  be  regulated  by 
such    laws   as   are,   or  may  be  in  force  therein,  and  the  said  Jud- 
ges  shall    possess  a  Chancery,  as  well  as  common  law  jurisdiction.  " 
In  1827,  the  laws  of  the  Territory  were  revised,  and   the   Circuit 
Courts,  which  had  been  organized,  obtained  concurrent  equity  juris- 
diction with  the  Supreme  Court,  subject  however  to  an  appeal  there- 
to, and  were  invested  with  the  exclusive    power  of  deciding    appeals 
from  the  County  Courts.     It  was  provided  by  the  law  of  1827,  that 
proceedings  in  Chancery  "  when  they  are  not  regulated  by  the  stat- 
utes of  this  Territory,  shall  be  regulated  by  the  judges  thereof,  con- 
forming to  the  rules  and  proceedings  established  by  Courts  of  Chan- 
cery in  England,  so  fur  as  the  same  shall  be  consistent  with  the  laws 
and  constitution  of  the  United  States  and  the  laws  of  the  Territory  of 
Michigan.  "     In  1833,  the  laws  were  again  revised,  but  no   material 
alteration  was  made  relative  to  the  mode  of  proceeding  in  suits  in  equity. 
By  the  constitution   of  the  State,  adopted  in   1835.   the  judicial 
power  was  vested  in  one  Supreme  Court  and  in  such  other  courts,  as 
the  legislature  might  from  time  to  time  establish.      At  the  first  ses- 
sion of  the  state  legislature  a  separate  tribunal  was  created,  which  was 
invested  with  all  the  equity  powers   pre\  iously   conferred  upon   the 
several  territorial  courts,  and  in  July,  1836,  Elon  Farnsworth    Esq., 
of  Detroit,  was  appointed  Chancellor.     Mr.  Farnsworth  continued  to 
perform  the  duties  of  Chancellor  with  great  satisfaction  to  the  public 
and  the  members  of  the  bar,  until  March,  1842,  when  he  was    com- 
pelled to  resign  the  office  on  account  of  his  health.     During  the  time 
Mr.  Farnsworth  was  Chancellor,  the  practice  of  the  court  was  regu- 
lated by  a  well  digested  system  of  rules  prepared  by  him,  which  are 
published  with  the  present  volume. 

In  1833  provision  was  made  by  law  for  the  appointment  of  a  Ke- 
porter  of  the  decisions  of  the  Court  of  Chancery,  and  in  February, 
1839,  E.  Burke  Harrington,  Esq.,  received  the  appointment  and  en- 
}ered  upon  the  duties  of  the  office.     About  one   half  of  the  present 


PREFACE.  Y 

volume  was  publislied  under  his  immediate  supervision,  in  January, 
1841.  Tiie  destruction  by  fire  of  the  printing  office,  with  a  portion 
of  the  manuscript  prepared  for  the  press,  suspended  tlic  publication 
for  a  time,  and  the  repeal  of  the  law  soon  after  effectually  put  a  stop 
to  the  work  until  1844,  when  the  legislature  passed  another  act  re- 
quiring the  judges  of  the  Supreme  Court,  and  Chancellor,  to  appoint 
a  Reporter  of  the  decisions  of  these  courts.  Mr.  Harrington  receiv- 
ed the  appointment,  under  the  last  act,  and  continued  to  perform  the 
duties  of  the  office  until  his  decease  in  August,  1844.  The  last  half 
of  the  present  volume  was  then  partially  in  press,  and  almost  wholly 
prepared  by  him.  The  undersigned  was  appointed  to  fill  the  vacan- 
cy occasioned  by  the  death  of  Mr.  Harrington,  and  has  superintended 
the  publication  from  his  manuscript  since  that  time. 

The  decisions  of  the  Court  are  in  all  cases  given  as  they  were  de- 
livered in  H-riting  at  the  time,  or  prepared  by  the  Chancellor  from 
his  notes.  A  second  volume  of  the  decisions  of  the  Court  of  Chan- 
cery commencing  with  the  appointment  of  Chancellor  Manning,  is 
now  in  press,  prepared  bv  the  undersigned,  and  will  be  published  du- 
ring the  ensuing  year. 

in^^NRY  N.  WALKHK, 

Detroit,  November  30,  1844. 


TABLE  OF  CASES  REPORTE  D. 


The  lelier  v  follows  llie  Complainants'  name. 


A.  Page. 

At\v;iicr,  v.  Kimnan,  243 

Aldcn,  Cooper,  v.  ^'^ 

Allen,  Connor,  v.  371 

Aucrbury,  I'ayne,  v.  411 

Ankrhn,  v.  "Wooilvorth,  355 
AUorney  General,  v.  Bank  of  Micliigan,      ai5 

B. 

Bank  Coniini#sioners,  v.  Bank  of  Brest,        10(5 
Bank  of  Brest,  Bank  Commissioners,  v.        lOb 

Bunk  of  Michigan,  V.  Williams,  219 

t<anic,  Wales  v.  30i- 

Same,  Attorney  General,  v.  315 

Bank  of  I'ontiau,  Barnum,  v.  116 

Bank  of  Wind.-^or,  Pratt  v.  254 

Barnes,  Kellogg,  v.  258 

Barnum,  v.  Bank  of  Pontine,  110 

Barton,  JMcl/Can,  V.  27!) 

Barrows  v.  Doty,  1 

Eaten  V.  Garrison,  2-2 1 

Beaiibicn,  v.  PoupartI,  2tl() 

Bernard  v.  Bougard,  130 

Bennette,  MeMurlrie.  v.  124 

Brown,  v.  Gardner.  201 

Brown,  v.  Whipple,  v.  430 

Boniier,  V.  Caldwell,  6' 

Bougard,  Bernard,  v.  iM 

Burtch,  V.  Hogge,  31 

C. 


Fay,  V.  Eric  &  Kalamazoo  Uailroad  Bank, 
Fanners'  &.  Mechanic's  Bank,  Carroll,  v. 
Freeman,  v.  Michigan  Stale  Bank, 


F 


Page 


G. 


Graham,  v.  Klniorc, 
Gardner,  Brown,  v. 
Graves,  v.  Niles, 
Garrison,  Bates,  v. 
Golf,  V.  Thompson, 


11. 


Hart,  Lapeer  County,  v. 
Hawley,  v.' Sheldon, 
llaiinnond,  v.  Place, 
Hogge,  Burtch,  v. 
Higgins,  V,  Carpenter, 
Hulbert,  Stafford,  v. 


Ingersoll,  Kirliy,  v. 


J. 


Camp,  Kldred,  v.  162 

Campbell,  Pratt,  v.  230 

Clark,  V.  Davis,  227 

Same,  v.  Saginaw  Cily  Bank,  240 

Caldwell,  Bomier,  v.  67 

Carpenter,  Higgins,  v.  250 
Carroll,  v.  Farmers'  &  Mechanic's  Bank,    197 

Same,  v.  Van  Rensselaer,  225 

Clinton  Canal  Bank,  v.  AVheeler,  449 

City  of  Detroit,  Dcvaux,  V.  9& 

Connor,  v.  Allen,  371 

Comstock,  Sinclair,  v.  404 

«;ook,  V.  Wheeler,  443 
Cooper,  V.  Aldeii, 

1). 

Davis,  Clark,  v. 

Devaux,  v.  Cily  of  Detroit, 

Dcquindre,  .Suydam.  v 

Detroit  City  Bank,  Mason,  v. 

Dislirow,  V.  Jones, 

Disbrow,  Jones,  v. 

Doty,  Barrows,  v. 

Siune,  Uowland,  v. 

Same,  Mack,  v. 
Dow,  Street,  v.  427 

E. 

Eldred,  v.  Camp,  102 

Krie  &.  Kalamazoo  Railroad  Bank,  Fay,  v.  194 
Elmore,  Graham,  v.  "        205 


Jerome,  v.  Seymour. 
Same,  v.  Same, 

Jones,  Disbrow,  V, 
Same,  v.  Disbrow, 
Same,  Livineslon,  \ 
Same,  v.  AVing, 


K. 


Kellogg,  V.  Barnes, 
Kctclinm,  Sill,  v. 
King,  Wright,  v. 
Kinman,  Atwater,  v 
Kirby,  v.  Ingersoll. 


Lane,  Thayer,  v. 
Lapeer  County,  v.  Hart, 
Liivingston,  v.  Jones, 
Loranger,  Wadsworth,  v. 
Lyon,  Weed,  v. 


M. 


227 

ii!; 

347 

22-'' 
,jg|Mack,  Thompson,  v. 

j().)      Same,  v.  Doty, 

JiMcLean,  V.  Barton, 

y  McMiiririe,  v.  Bennetlc, 

3gy  Mason,  v.  Detroit  City  Bank, 

Millard,  V.  Ramsdell, 

Same,  Ramsdell,  v. 

Michigan  State  Bank,  Frecnmii,  v. 


N. 


Niles,  Graves,  v. 


1!)4 
1'.I7 


265 
291 
332 
221 
OU 


157 
420 
43i- 

31 
256 

135 


255 
357 
48 
102 
J  03 
301 


258 
423 
12 
243 
172 


2-17 
157 
165 
113 

303 


ir,o 

.'iCO 
279 
124 
222 
373 
373 
311 


332 


Via 


TABLE  OF  CASES  REPORTED. 


p. 

Pratt,  V,  Canipljcll, 

Same,  v.  ifank  of  Windsor, 
Place,  Haimiiond,  v. 
Payne,  v,  Atlerbury, 
I'eltier,  v.  Peltier, 
I'oupard,  Beaublen,  v. 


Paije.i 


S. 


R. 


RamsdeU,  v.  Millard, 

Same,  Millard,' v, 
liowlund,  V.  Uoty, 


ycliwarz,  V.  AVendell, 

Sciiwarz,  v.  Sears, 

Sasinaw  City  Bank,  Clark,  v. 

Same,  Smith,  v. 
Stafford,  v.  Hulhert, 
Steward,  v.  Stevens, 
Sears,  Sciiwarz,  v. 
Stevens,  Steward,  v. 
Street,  v.  Dow, 
Sheldon,  Hawlcy,  v. 
Seymour,  Jerome,  v. 
Seymour,  .Terome,  v. 
Swift,  Thayer,  v. 
Sjiil,  V.  Ketchum, 
Smith,  V.  Saginaw  City  Bank, 
Sinclair,  v.  Comslock, 
Stockton,  V.  Williams, 


13(51  ^'uydaaj,  v.  Dequiiidre. 


2o4 

438     ^. 

•J^Tate,  V.  Whitney, 
19  Thayer,  v.  Lane, 
-06|    .Same,  v.  Swift, 
Torrey,  Walton,  v. 
Topliff,  v.  Vail, 
Thompson,  Goff,  v. 
Same,  v.  Mack, 


T. 


373 

373 

3 


095 
440 
•240 
426 
43o 
169 
.  440 
169 
4-i7 
420 
•255 
357j 
43(1 
423 
426 
404 
241 


Van  Rensselaer,  Carroll,  v. 
Vail,  Topliff,  V. 

W. 


Walcf,  V  Bank  of  Michigan, 

Wadsworlh.  v.  Loranger, 

Walton,  V.  Torrey, 

Weed,  V.  Lyon, 

Wheeler,  v.  Clinton  Canal  Bank, 

Same,  Cook,  v. 
Wendell,  Schwarz,  v. 
Wright,  v.  King, 
Wing,  Jones,  v, 
Whitney,  Tate,  v. 
Whipple,  V.  Brown, 
Williams,  Bank  of  Michigan,  v. 

Same,  Stockton,  v. 
Woodworth,  .^nkrim,  v. 


Page. 
347 


145 
247 
430 
2.59 
340 
60 
ISU 


2'2d 
340 


.  308 
113 
259 
363 
449 
443 
395 
12 
301 
145 
436 
219 
•241 
355 


INDEX 

TO  THE  RULES  OF  THE  COURT  OF  CHANCERY. 


OTAe  reference  is  to  the  numher  uf  the  rule. 

A. 

Absent  defendants,  reference  in  case  of,  22. 
Accounts  to  lie  in  form  of  delAor  and  creditor,  79. 

with  banks,  how  kept,  90. 
Address  of  petitions  and  bills,  6. 
Affidavits,  how  to  be  entitled,  68. 

to  be  annexed  to  costs  to  be  taxed,  93. 

to  obtain  an  attachment,  when  a  discovery  is  prayed  for,  18. 
Agreements  between  solicitors  to  be  in  writing,  87. 
Agents  to  be  appointed  by  solicitors,  9. 

when  service  may  be  on,  10. 

double  time  of  service  on,  11. 
Amendment  of  creditor's  bUl  of  course,  110. 
Amendments  to  bill  when  allowed,  29. 

after  demurrer,  29. 

after  exceptions  allowed  or  submitted  to,  30. 

to  be  of  course,  without  order,  2?. 

not  to  be  of  course  to'  injunction  bills,  30. 

eet  vice  of  necessary,  28. 

to  sworn  bill,  how  verified,  28. 

statements  of,  to  be  filed,  28. 
Answer,  how  to  be  entitled,  68. 

how  to  be  verified,  14. 

on  oath,  how  waived,  25. 

before  whom  they  may  be  sworn,  20. 

to  cross  bill  when  demandablc,  27. 

effect  of,  when  not  replied  to,  25. 

taken  out  of  the  state,  how  verified,  26. 

to  be  put  in  within  40  days,  17. 

further  time  for,  on  exceptions  submitted  to.  42. 
on  exceptions  allowed,  43. 
to  be  fixed  by  the  master,  39. 
Appearance,  when  and  where  entered,  17. 

on  return  of  attachment  served,  19. 

penalty  for  refusing  to  enter,  19. 
Arguments  of  exceptions  to  answer,  to  be  heard  as  a  motion,  46. 
Attachment  for  not  appearing,  when  to  issue,  18. 

neglect  to  iipjiear  on,  penalty  for,  19.  ' 

proceedings  on,  to  compel  appearance,  19. 

Vol.  I.  1* 


^  INDEX. 

B. 

Bank,  accounts  wilb,  how  kept,  80. 

orders  on,  how  drawn,  91. 
Bills  to  be  addressed  to  the  chancellor,  6. 

to  be  sworn  to  if  discovery  is  required,  13. 
how  to  be  sworn  to,  14. 
by  creditors,  what  to  state,  109. 
may  be  amended,  110. 
manner  of  stating  "matters  in,  14. 

of  non-residents,  not  to  be  filed  without  security  for  costs,  12. 
Bills  not  sworn  to,  amendable  of  course,  28. 
may  be  amended  after  demurrer,  29. 

on  exceptions  allowed,  30. 
may  be  dismissed  for  want  of  prosecution,  49. 
of  review,  not  to  be  filed  without  leave,  103. 
for  divorce,  &c.,  to  be  sworn  to,  100. 
to  contain  special  averments,  100. 
of  costs  to  be  furnished  for  enrolment,  106. 
for  foreclosure  of  mortgages,  how  to  state  incumbrances,  95. 
order,  to  deliver  a  copy  of,  in  15  days,  20. 


Caption  of  orders  and  decrees,  form  of,  6. 

to  state  where  made,  71. 
Calendar,  how  made  up,  6!. 

causes  may  be  entered  on  in  term,  65. 
Case  to  be  furnished  at  hearing,  63. 

to  be  not  more  than  one-sixth  as  long,  63. 
Charges  and  discharges  to  be  sworn  to,  79. 
Chancellor,  bills  to  be  addressed  to,  6. 
Commissions  to  examine  witnesses  of  course,  51. 
Commissions  to  examine  witnesses,  adverse  party  may  join  in,  52. 

special  may  be  granted,  54. 
Common  order,  how  obtained,  31. 

Complainant's  name  to  be  placed  first  in  title  of  cause,  68. 
Complainant,  non-resident  to  give  security,  12. 
to  swear  to  bills  if  discovery  is  required,  13. 
to  deliver  a  copy  of  bill  in  15  days,  20. 
to  refer  exceptions  in  ten  days,  35. 
to  serve  a  copy  of  rule  in  creditor's  suit,  113. 
Conveyances  not  to  be  executed  before  enrolment,  83. 
Copy  of  bill,  order  to  deliver  in  15  days,  20. 
rule  to  be  served  in  creditor's  suit,  113. 
Copies  of  pleadings  to  be  furnished  to  the  court  on  hearing,  66. 
by  whom  furnished,  67. 
to  be  paged  to  correspond  with  draft,  68. 
Costs  of  amendment  after  answer,  28. 
demurrer,  &c.,  29. 
of  exceptions  submitted  to,  to  be  paid  by  defendant,  34. 
for  scandal  or  impertinence,  37. 
when  disallowed,  41. 
order  for  further  answer  and  for  costs,  43. 
taxed  bill  to  be  served  before  time  for  answering  expires,  44. 
of  exceptions,  penalty  for  not  paying,  45. 


INDEX.  xi 


Costs  to  be  all  included  in  one  bill,  47. 

to  be  taxed,  118. 

regulated  in  certain  cases,  93. 

may  be  taxed  by  master  or  register,  92. 

not  to  be  paid  until  taxed  bill  and  affidavit  filed,  94. 

when  charged  on  complainant  in  mortgage  causes,  95. 

of  false  claims  to  overplus  on  sales,  to  be  paid  by  claimant,  97. 

to  be  filed  in  20  days  after  taxation,  94. 

to  be  verified  by  oath  on  taxation,  93. 

inicrlocutory  to  be  paid  in  '20  days,  104. 

to  be  furnished  for  enrolment,  100. 

to  be  filed  in  15  days  for  enrolment,  lOG. 

forfeited  if  not  furnished  before  enrolment,  107. 
Counsellors  to  be  examined  and  licensed,  and  how,  7. 

who  are  entitled  to  examination  as,  8. 
Creditor's  bills,  form  of,  109. 
to  be  sworn  to,  110. 
Creditor's  bills,  submission  of  defendant  on,  1)1. 

powers  of  receiver  on,  112. 

may  be  amended  of  course,  110. 

rule  to  be  served  with  subpoena  in,  111. 
Cross  bill,  when  to  be  answered,  27. 

D. 

Date  of  issue,  64. 

Debtor,  when  excused  from  answering.  111. 

Decrees  may  be  entered  with  register,  &c.,  71. 

caption  of,  to  state  when  made,  71. 

to  be  enrolled  before  execution,  S3. 

for  divorce,  &c.,  not  granted  by  default  without  proof,  105. 

by  default  at  hearing,  69. 

of  course  for  not  serving  copy  of  bill,  20. 
Defaults  may  beset  aside  on  terms,  69. 
Defendant  when  excused  from  answering,  111. 

arrested  on  attachment,  to  enter  his  appearance,  19. 

may  submit  to  a  part  of  the  exceptions,  HI. 
Demurrer  for  want  of  parties,  amend.nent  of  course  on,  29. 

overruled  as  frivolous,  or  otherwise,  order  on,  33. 

either  parly  may  notice  It  for  hearing,  32. 

how  placed  on  calendar,  and  in  what  class,  64. 
Deposit  to  be  made  on  a  rehearing,  86. 

on  filing  a  bill  of  review,  105. 
Depositions  to  be  returned  and  filed  by  master  in  10  days,  .59. 

to  be  paged,  68. 

how  taken  before  masters  on  references,  77. 
Discovery,  from  defendant,  how  obtained,  18. 
Dismissing  bill  for  want  of  prosecution,  49. 
Divorce,  bills  for,  to  be  sworn  to,  100, 

reference  of,  101. 

matters  set  up  in  bar  of,  how  tried,  102. 
Documentary  evidence,  not  be  read  without  notice,  56. 
Double  time  where  service  on  an  agent,  11. 

E. 

Enrolment  of  decrees  to  be  made  before  execution,  83. 
Entitling  of  papers,  complainant's  na:ne  to  be  p'.aie  1  first,  05. 


.ii  INDEX. 

Examination  of  parties,  &e.,  before  master,  77. 

accounting  Ijeforc  a  master,  79. 
Exceptions  in  injunction  cases  to  filed  in  10  days,  23. 

for  insulficiency,  not  iiUovved  in  certain  cases,  25. 

to  answer,  to  be  filed  in  20  days,  34. 

not  submitted  to,  to  be  referred  In  10  days,  33. 

for  scandal  or  impertinence,  how  talven,  37. 

maste  's  report  on,  wlien  conclusive,  41. 

to  be  stated  on  reference  of  Sd  and  3d  answer,  36. 

master's  report  on,  when  to  be  procured,  39. 
when  to  become  absolute,  40. 

to  a  report  on,  to  be  heard  as  a  special  motion,  46. 

cobts  on,  regulated,  46. 

costs  on,  not  allowed  in  certain  cases,  47. 
Limited  to  objections  lalten  before  master,  73. 

costs  on  to  be  in  one  bill  47. 

when  to  prevent  motion  to  dissolve  injunction, 24. 
Exhibits  to  be  produced  before  master,  56. 

to  be  returned  and  filed  before  hearing,  59. 
Ex  parte  applications  to  be  heard  on  motion  days  only,2. 

F. 

Fees  to  be  detailed  in  bills  of  costs,  93. 
Foreclosure  suits,  proceedings  in,  95. 

Furlher  answer,  order  for,  on  submission  to  exceptions,  42. 
on  report  of  master,  43. 

G. 

Guardians,  ad  litem,  petition  for,  by  whom  presented,  98. 
not  to  receive  infant's  property,  90. 

H. 

Hearing  may  be  noticed  by  either  party,  61. 

on  bill  and  answer,  if  no  replication  is  filed,  48. 

time  of  notice  of,  how  regulated,  6-2. 

case  to  be  furnished  on,  in  certain  cases,  63. 

of  exceptions,  to  report  on  exceptions,  46. 

calendar  of  causes  for,  how  made  up.  64. 

to  be  noticed  for  first  day  of  term,  65. 

papers  to  be  furnished  on,  66. 

who  to  furnish  papers  for,  67. 

decrees  by  default  at,  69. 

I. 
Impertinence,  report  on,  when  to  be  final,  41. 
Impertinent  matter,  order  to  expunge,  41. 

Incumbrances,  not  to  be  stated  at  length  in  foreclosure  suits,  95. 
Infants,  guardian,  ad  litem,  of,  99. 

guardians  not  to  receive  property  of,  99. 
Injunctions,  elfect  of,  on  creditors  bills,  115. 
Interrogatories  to  examine  foreign  witnesses,  53. 
Issue  on  filing  general  replication,  48. 

note  of,  to  be  delivered  four  days  before  term,  65. 

causes  to  have  priority  from  date  of,  64. 

L. 

License  to  practice  as  solicitor,  &c.,  how  obtained,  7. 


INOKX.  xiii 


Master  to  keep  register  and  enter  proceedings  therein,  5. 

to  report  on  exceptions  in  20  days.  38. 

to  fix  time  for  furtlicr  answer,  39. 

to  file  report  in  iO  days  after  argument,  81. 

to  issue  summons  and  fix  lime  of  service,  T2. 

may  allow  another  party  to  proceed  on  reference,  73. 

may  settle  order  of  proceeding,  74. 

may  direct  as  to  production  of  papers,  75. 

may  proceed,  ex  parte,  in  liis  direction,  76. 

may  examine  parlies,  &c.,  orally,  77. 

to  decide  finally  as  to  impertinence,  73. 

may  proceed  on  exceptions  filed  before  him,  78. 

may  examine  accounting  party  on  oatli,  79. 

may  allow  interest  as  shall  be  just,  79. 

may  make  separate  report,  80. 

to  fix  time  for  settling  report,  81. 

not  to  convey  lielorc  enrolment,  83. 
Money,  orders  for  payment  of,  91. 
Motion  days  in  vacation,  when  and  where  held,  1. 

in  term,  on  Monday  of  each  week,  3. 
Motions  to  stand  over  in  absence  of  chancellor,  2. 

to  be  made  on  the  day  of  notice,  3. 

special  notice  of,  how  to  be  given,  62, 

to  dismiss  bill  for  want  of  prosecution,  49. 

for  reference  in  divorce  causes,  101. 
Mortgage  cases,  proceedings  in,  regulated,  95. 

to  have  preference,  64. 

reference  of  course,  to  compute  amount,  96. 

reference  as  to  surplus  moneys,  97. 

N. 

Nc  exeat,  retained  till  hearing  in  certain  cases,  94. 
Non-resident  complainants  to  give  security,  12. 
Note  of  issue,  when  to  be  delivered,  65. 
Notice,  when  it  may  be  served  on  agent,  10. 

how  served  in  absence  of  solicitor,  11. 

when  double  time  required,  11. 

when  to  be  put  in  post  otficc,  10. 

of  appUcation  for  a  commission,  51. 

of  examination  of  witnesses,  50. 

of  hearing  and  special  motions,  62. 

to  attend  on  reference,  time  of,  regulated,  72. 

of  hearing;  to  be  for  first  day  of  term,  65. 

of  claim  to  surplus,  may  be  filed,  97. 

of  taxation  of  costs,  118. 

to  file  cost  for  enroinjcnt,  106. 
Nullity  of  marriage,  bill  for,  to  be  verified  by  oath,  100. 
reference  to  t.-tkc  proof,  101. 

o. 

Oath  to  bills  and  answers,  14. 
Orders  of  course,  when  to  be  entered  together,  110. 
Order  for  examination  of  counsellors  and  solicitors,  7. 
to  take  bill  as  confessed  for  neglect  to  appear,  19. 


INDEX. 

Order  tliat  defendant  answer  in  forty  days,  21. 
for  absent  defendants  to  appear,  22. 

that  defendant's  appearance  be  entered  on  attachment,  19. 
on  attachment,  to  take  bill  as  confessed,  20. 
to  deliver  a  copy  of  bill  in  fifteen  days,  20. 
to  answer  cross  bill,  27. 
of  course,  to  amend,  not  necessary,  28. 
of  course,  how  entered,  31. 
to  answer  on  overruling  a  plea  or  demurrer,  33. 
to  refer  exception  to  answer,  if  not  submitted  to,  35. 
second  or  third  answer  on  old  exceptions,  G6. 
exceptions  for  scandal  or  impertinence,  37. 
to  expunge  impertinent  matter,  41. 
for  a  further  answer  on  submission  to  exceptions,  42. 

on  report  of  master  on  exceptions,  43. 
on  default  in  answering  exceptions  for  insufficiency,  45. 
to  dismiss  l)iU  for  want  of  prosecution,  49. 
to  examine  witnesses  before  master,  50. 
for  special  commission  to  examine  witnesses,  51. 
to  examine  defendant  as  witness,  55. 
for  leave  to  prove  exhibits  at  hearing,  56. 
to  enlarge  time  for  examinaUon  of  witnesses,  60. 
of  hearing  calendar  causes  at  term,  64. 
to  dismiss  bill  for  default  at  hearing,  69. 
where  to  be  entered,  71. 

of  reTerence,  application  to  expedite  proceedings  on,  73. 
to  confirm  master's  report,  unless  cause,  82. 
affecting  merits  to  be  included  in  enrolment  83. 
to  stay  proceedings,  and  to  show  cause,  how  obtained,  85. 
nisi,  to  be  orders  of  eight  days,  88. 
to  extend  time,  by  whom  allowed,  S9. 
upon  banks  for  payment  of  monevs  deposited  in  court,  91. 
of  reference  to  compute  amount  due  on  mortgage,  96. 

as  to  surplus  on  mortgage  sales,  97. 
for  guardian,  ad  litem,  by  whom  granted,  98. 
to  pay  costs,  how  enforced,  104. 

for  leave  to  file  a  bill  of  review,  deposit  requu-ed  on,  105. 
form  of  caption  of,  6. 

caption  of,  to  state  truly  where  court  was  held,  71. 
several,  when  to  be  entered  as  one,  116. 

P. 

Papers  to  be  furnished  for  hearing,  06. 
marked  by  the  folio,  68. 
furnished  on  a  re-hearing,  66. 
Parol  agreements  between  solicitors  not  allowed,  87. 
Petitions,  when  to  have  preference  over  calendar  causes,  3 
to  be  addressed  to  chancellor  by  his  title  only,  6. 
how  to  be  verified,  14. 
how  to  be  entitled,  68. 
for  a  re-hearing,  84. 
to  appoint  guardians,  ad  litem,  98. 
Plea  overruled  as  frivolous,  proceedings  on,  33. 

if  allowed,  may  be  replied  to  within  ten  days,  32. 

Pleadings  to  be  fairly  written  and  marked  by  the  foUo,  6.. 

to  he  abr«viated  for  the  court  on  the  hearing,  66. 


INDEX.  w 


Pleadings,  by  whom  to  be  furnished  on  hearing,  67. 
Process,  when  returnal)lc,  15. 

may  be  renewed  of  course,  if  not  served,  13. 

upon  decrees,  by  whom  to  be  sealed,  83. 

R. 

Receivers,  how  appointed  on  creditor's  bills.  111. 

powers  of,  on  creditor's  bill,  112. 

not  to  pay  money  to  parlies  without  order,  113. 

to  keep  separate  accounts,  111. 

only  one  to  be  appointed,  114. 
Reference  of  exceptions  to  answer  for  insufficiency,  33. 

of  second  and  third  answer  on  old  exceptions,  30. 

of  exceptions  for  scandal  or  impertinence,  37. 

proceedings,  and  notice  required,  72. 

application  to  expedite  proceedings  on,  73. 

to  compute  amount  due  on  mortgage,  96. 

as  to  surplus  on  mortgage  sales,  97. 

in  divorce  causes,  how  obtained,  101. 

by  consent  on  creditor's  bills.  111. 
Registers  to  keep  necessary  books,  and  have  them  bound,  Sec.,  I. 

list  of  agents  in  his  office,  9. 

to  transmit  lists  of  solicitors  to  other  registers,  7. 

to  issue  commissions  to  take  testimony,  31. 

not  to  file  irregular  papers,  68. 
Re-hearing  petition,  certificate  of  counsel,  ttc,  on  application  for,  84. 

deposit  on,  to  be  made  in  ten  days,  80. 
Replication,  when  to  be  filed,  48. 
Report,  objections  to,  must  be  made  before  master,  78. 

when  to  be  settled  and  filed,  81. 

on  exceptions  for  impertinence,  when  final,  41. 

order  to  confirm  nisi,  S2. 

on  exceptions,  to  specify  time  for  further  answer,  39. 

on  exceptions,  when  to  become  absolute,  41). 
Re-taxation  to  be  granted  by  the  chancellor  in  certain  cases,  92. 
Rule  to  be  served  in  creditor's  suits.  111. 

when  to  take  efiect,  117. 

former  abolished,  117. 

s. 

Security  to  be  given  by  non-residents  before  bill  filed,  12, 

required  of  special  guartUans,  99. 

required  on  bill  of  review,  105. 
Separation  bill,  how  verified,  100. 

reference  to  take  proof  on  bill  for,  101. 

not  granted  of  course,  in  any  case,  103. 
Several  orders,  when  to  be  entered  as  one,  116. 
Service  may  be  on  agent  in  certain  cases,  10. 

when  on  agent,  double  time  required,  11. 

by  putting  in  post  office,  10. 

not  required  when  defendant  has  not  appeared,  10. 

of  subpoena,  how  made,  16. 
Solicitors  to  be  examined  and  licensed,  7. 

when  entitled  to  examination,  8. 

to  have  agents  in  each  circuit,  9. 

to  file  taxed  billi  within  twenty  days,  91. 


INDEX. 

XVI 

Solicitors  to  verify  bills  ofcost«l.efore  taxation,  93.  .| 

^;ul)niissionofcauses,liowraade,70.  ^     ,     .      ,. 

subpoena  to  contain  tbe  names  of  all  the  defendants,  16. 

liow  to  be  served,  16.  ■ 

for  witnesses,  to  specify  place  of  appearance,  5- .  J 

Substance  of  oath  to  be  stated  in  jurat,  14. 
Summons,  time  of  servicejequired  on,  72. 

to  see  draft  of  report,  not.necessary,  61. 

to  be  served  on  incumbrancers  who  have  hied  clamts,97. 
Surplus  on  sales,  distribution  of,  how  made,  97. 

T. 

Time  of  service,  when  an  agent,  to  be  double,  11. 
of  summons  regulated,  (2. 
on  rules  and  orders.'.how  to  be  estimated,  8.. 
court  may  extend,  in  all  cases  on  terms,  89. 

Taxed  bills,  to  be  furnished  for  enrolment,  106. 

to  be  filed  within  twenty  days,  94. 
Taxation  of  costs  regulated,  93,  118. 
Taxing  master  to  belappoinied  for  each  c.rcu.t,  9-. 

w. 

Witnesses  out  of  state  to  be  e.xamined  on  interrogatories,  53. 
„ot  compelled  to  travel  over  forty  miles,  57. 
how  examined  on  reference,  77. 
order  to  examine  defendant  as,  55. 
subpoenas  to  compel  attendance  of,  57. 


RULES  AND  ORDERS 


OF  THE 


COURT  OF  CHANCERY. 


The  following  rules  and  orders  of  the  Court  of  Chancery  of  the  state  of  Michigan,  revised 
and  established  by  the  Chancellor,  in  January,  1839,  were  adopted  principally  from  the  rules  and 
orders  of  the  court  of  chancery  of  the  state  of  New  Yorlc.  Some  of  the  New  York  rules  were 
adopted  from  the  orders  of  the  English  court  of  chancery. 

There  are  adjudicated  decisions  in  England  and  in  the  state  of  New  Vork,  as  well  as  in  the 
court  of  chancery  of  this  state  which  go  to  settle  the  construction  to  be  given  to  nearly  a'.l  the 
following  rules  and  orders,  and  to  establish  the  practice  under  the  same. 

These  adjudicated  decisions  will  be  found  noted  under  the  respectix-c .  uies  and  orders  to  which 
they  refer. 


RULE  1. 

The  first  Tuesday  of  every  month,  during  the  vacations,  is  ^J°^°^„^er 
assigned  for  the  hearing  of  motions  and  petitions  before  the  1°^- 
chancellor,  at  the  city  hall,  in  the  city  of  Detroit.  And  if  there 
is  not  sufficient  time  to  finish  the  business  noticed  for  any 
regular  motion  day,  it  may  be  continued  from  day  to  day,until 
it  is  completed;  or  it  may  be  adjourned  to  some  subsequent 
day. 

RULE  2. 

When  regular  notice  of  an  application  has  been  given  forincascof 
any  motion  day,  if  the  chancellor  is  unable  to  attend  on  the  ^J^^'^|'° 
day  appointed,  the  case  shall  stand  over,  of  course,  until  the 
next  regular  motion  day,  when  it  may  be  brought  on  without 
further  notice.  But  if  a  stated  or  special  term  of  the  court 
intervenes,  the  case  shall  be  considered  as  standing  over  until 
the   first  day   of   term.     And  no   motion  or  petition,  except 

Vol.  1.  3* 


mo- 
over. 


xviii  CHANCERY  RULES. 

Exparteap-  aDolications  for  iniunctions,  shall  be  heard,  except  on  a  regular 

plications  to      1  «  j  > 

onmouon"'^  motlon  dav,  or  at  the  term    unless  in  case  of  emergency,  and 
^^^'  by  special  permission. 


RULE  3. 

Motion  days      Motiofis  and  petitions  shall  have  a  preference  over  calendar 

in  term,  on 
Monday  of 
each  week. 


in  term,  on  <•     i  i  i\/r 

Monday  of    causcs.  On  the  first  and  second  days  of  the  term,  and  on  Mon- 


day  of  every  week  thereafter,  during  the  term,  but  on  no 
K."e'on  other  day,  without  special  order.  And  in  all  cases,  the  motion 
whid'iiiiey    shall  be  made,  or  the  petition  be  presented,  on  the  day  for 

are  noticed.  •  u      u         J 

which  it  is  noticed,  if  the  party  has  an  opportunity  to  be  heard 
on  that  day,  unless  the  court  shall  otherwise  direct. 

RULE  4. 

Registers  to  The  rcgistcrs  shall  keep  in  their  respective  offices,  such  re- 
keep  aiine-  iU  *'t\  c 
cessary        gistcrs  and  books,  as  may  be  necessary  to  enter  the  titles  oi 

boolss.  "  »  ./ 

causes,  with  memorandums  of  the  proceedings  in  such  causes, 
to  enter  the  minutoe  of  the  court,  docket  decrees,  enter  common 
orders,  special  orders  and  decrees,  the  appointments,  periodical 
reports  and  in  'entories  of  guardians,  committees  and  receivers, 
and  the  receipt,  investment,  payment  and  expenditure  of  mo- 
neys paid  into  court;  all  of  which  books  and  registers  shall  be 
well  bound  and  appropriately  lettered  and  marked,  to  desig- 
nate the  uses  for  which  they  are  intended. 

RULE  5. 

The  masters      It  shall  be  the  duty  of  each  master  in  chancery  to  procure 

to  lieep  •'  'I  1. 

registers.  ^^d  keep  in  his  officc,  a  foHo  register,  well  bound  and  lettered, 
which  shall  be  delivered  over  by  him,  or  his  legal  representa- 
tives, to  his  successor  in  office.  He  shall  enter  in  such  regis- 
ter, the  title  of  all  causes  and  matters  referred  to  him,  and  a 
-  brief  memorandum  of  the  proceedings  before  him,  on  such  re- 
ferences. 

RULE  6. 

Addresser        All  bills  and  petitions  shall  be  addressed  "to  the  Chancellor 

bills  andpe- 

titione.         of  the  Stale  of  Michigan,"  without  the  addition  of  his  name, 
or  any  other  title  or  designation.     And  the  caption  of  orders 


CHANCERY  RULES.  xix 

and  decrees  shall  be  in  the  following  form,  as  near  as  maybe:  orTrs°."°'^ 

"  Stato  of  Michigan, circuit:  At  a  court  of  chancery, 

for  the  state  of  Michigan,  holden  at  the ,  of ,  on 

the day  of ,    one    thousand  eight  hundred 

Present:  Elon  Farnsvvorth,  chancellor. 

The  cni)lion  of  orders  and  decrees  must  stale  the  lime  and  place  where  the  same  were  made. 
(See  rule  11.) 

Where  the  time  of  the  entry  of  an  order  is  material,  the  date  or  caption  of  the  order  should 
correspond  with  the  time  of  the  actual  entry  of  such  order.    Whitney  vs.  Belden,  4  Paige  R.,  140. 

RULE  7. 
No  person  shall  be  permitted  to  practice  as  a  solicitor  or  Noper^onto 
counsellor  in  chancery,  without  a  regular  admission  and  license  "gnJ"""'" 
by  the  chancellor.     And  to  obtain  such  admission  and  license, 
the  person  applying  must  be  examined  before  the  chancellor, 
or  before  such  other  officer  of  the  court,  as  the  chancellor  may 
direct,  on  a  special  order  for  such  examination,  previously  ob- 
tained: Provided,   it  shall  not  be  necessary  for  any  solicitor 
heretofore  admitted  to  practice  in  this  court,  to  be  again  exa- 
mined, but  they  shall  be  deemed  solicitors  of  this  court,  upon 
entering   their  names  with  one  of  the  registers  of  the  court; 
and  it  shall  be  the  duty  of  thn  rpgiotcis,  lo  transmit  to  each 
other,  a  certified  list  of  all  persons  admitted  to  practice  in  said 
court,  at  the  close  of  each  term. 


RULE  8. 

To  entitle  the  applicant  to  an  order  for  examination  as  soli- 


Miist  be  at- 
torney or 


ipreme 
court. 


citor  and  counsellor,  he  must  be  an  attorney  and  counsellor  of  s',;',""^"'"'"^ 
the  supreme  court  of  this  state. 

RULE  9. 

Every  solicitor  shall  have  an  agent  in  each  city  or  town  J^;'7/Jj;'^'- 
wbere  there  is  a  register's  office,  except  in  the  city  or  town  ''se""- 
where  such  solicitor  keeps  his  office.  The  register,  assistant 
register  and  practicing  solicitors,  or  any  other  persons  special- 
ly authorized  by  the  chancellor,  may  be  such  agents;  but  the 
agent  must  have  an  office,  or  a  regular  and  known  place  of 
business,  within  two  miles  of  the  register's  office   in  the  city 


XX  CHANCERY  RULES. 

Agents,  how  or  town  for  which  he  is  appointed  a^ent.     The   appointment 

appointed.  '  *  ° 

of  an  agent  shall  be  in  writing,  signed  by  the  solicitor,  and  spe- 
cifying his  place  of  residence.  It  shall  be  filed  with  the  re- 
gister at  the  place  for  which  the  appointment  is  made;  who 
shall  keep  in  his  office  a  list  of  such  agents,  with  the  names 
and  residence  of  the  solicitors  appointing  them. 

Where  the  solicitor  who  is  a  party  to  a  suit,  prosecutes  or  defends  in  propria  persona,  a  no- 
tice served  on  his  agent,  is  good  service.     Champlin  vs.  Fronde,  4  Johns.  Ch.  Rep.,  62. 

RULE  10. 

whenser-        When  the  solicitors  for  advei'se  parties  do  not  reside  in  the 

vice  may  be  '■ 

oniiieagent.  g^me  county,  scrvice  of  papers  may  be  made  on  an  agent.  If 
the  solicitor  does  not  reside  at  the  place  where  the  court  is 
holden,  in   the  circuit  in  which  the   cause   is  pending,  and  has 

not^ces^may  "^  agent    there,  service  of  a  notice   or   other  paper  may  be 

mau!"'"^  made  by  putting  it  into  the  post  office  at  that  place,  directed 
to  such  solicitor  at  his  place  of  residence,  to  be  ascertained  ac- 
cording to  the  best  information  and  belief  of  the  person  ma- 
king the  affidavit  of  service.  Notice  of  the  filing  of  all  plead- 
ings shall  be  given  to  the  adverse  party,  except  when  other- 
wise provided  by  thnse  rules,  within  the  time  hmited  for  fjhng 

Notice  of  fi-  ^]^Q  same.     But  no  service  of  notice  in  the  ordinary  proceed- 

11  ng  plead-  •     i 

tags.  ji^gg  y^  g^  cause,  shall  be  necessary  to  be  made  on  a  defendant 

who  has  not  appeared  therein. 

Where  a  solicitor  or  other  officer  of  the  court  nejjlects  to  appear  in  the  cause  after  personal 
service  of  the  subpoena,  he  will  not  be  entitled  to  the  service  of  subsequent  notices  and  papers 
upon  bini  or  his  agent.     Wells  vs.  Cruger,  5  Paige  R.,  164. 

But  a  party  who  has  appeared  in  the  cause  is  entitled  to  notice  of  the  subsequent  proceedings, 
although  he  is  in  contempt,  and  the  bill  has  been  taken  as  confessed  against  him  for  want  of  an 
answer.    King  vs.  Bryant,  3  Myl.  if  Craig's  R.,  191. 

RULE  11. 

Double  time      When  the  service  is  on  an  agent,  or  by  putting  in  the  post  of- 

where  ser- 


vice IS  on  a- 
gent. 


fice  for  want  of  an  ageut,  it  must  be  double  the  time  of  ser- 
vice which  would  be  requisite  if  the  service  was  on  the  solici- 
tor in  person.  And  if  the  solicitor  resides  more  than  one  hun- 
dred miles  from  the  agent  or  office  where  the  service  is  made, 
the  time  of  such  service  shall  in  no  case  be  less  than  fifteen 
days.     Notices  and  other  papers  may,  in  the  absence  of  a  so- 


.     CHANCERY  RULES.  xxi 

licitor  or  agent  from  his  office,  be  served  by  leaving  the  same 
with  his  clerk  or  law  partner  in  such  office,  or  with  a  person 
having  charsrc  thereof:  and  if  no  person  is  found  in  the  office,  ^'"t'c"  ""'i 

o  o  '  I  '  papers,  now 

by  leaving  the  same,  between  the  hours  of  six  in  the  morning  casrof'ab- 
and  nine  in  the  evening,  in  a  suitable  and  conspicuous  place  in  ""'^' 
such  office;  or  if  the  office  be  not  open  so  as  to  admit  of  ser- 
vice therein,  then  by  leaving  the  same  at  the  residence  of  the 
solicitor  or  agent,  with  some  person  of  suitable  age  and  dis- 
cretion. 

Where  notice  of  an  order  to  produce  wilnesses  is  served  on  an  agent,  the  party  serving  such 
notice,  as  well  as  the  adverse  party,  has  double  the  usual  lime  to  produce  witnesses.  James  vs. 
Berry,  1  Paige  R.,  047. 

RULE  12. 

In  all  cases  when  the  complainant  or  complainants  are  not  Xon-resi- 

dent  coin- 
residents  of  this  state,  before  process  shall  issue,  a  bond  in  the  pU'inunisto 

'  I  '  give  securi- 

penal  sum  of  one  hundred  dollars,  shall  be  filed  with  the  regis-  ^^  for  costs. 
ter,  to   be  approved   of  by  him,  conditioned   to   pay  all  such 
costs   as   shall   be   decreed  against   the   complainant  in  such 
cause. 

A  non-resident  complainant  may  be  compelled  to  give  security  for  costs  to  the  defendant,  In 
a  bill  of  revivor.     Wrighl  vs.  Lord  Cremorn,  2  Hogan's  Rep.,  IS. 

RULE  13. 

Bills  in  which  the  answer  of  the  several  defendants  on  oath  Biiistobe 

sworn  to  by 

is  not  waived,  may  be  verified  by  the  oath  of  the  complainant,  compiain- 
or  in  case  of  his   absence   from   the   state,  or  other  sufficient 
cause  shown,  by  the  oath  of  his  agent,  attorney  or  solicitor. 

The  word  "shall,"  in  the  second  line  of  this  rule  as  originally  printed,  was  a  typographical 
error;  it  should  have  been  "may."  The  object  of  the  rule  is  to  give  an  opportunity  for  the 
verification  of  all  bills  in  a  manner  similar  to  that  provided  for  creditor's  bills,  in  rule  110.  But 
it  is  not  necessary,  under  this  rule,  to  verify  all  bills.     Per  Farnaworlh,  chancellor. 

In  a  sworn  bill,  it  is  perjury  for  the  complainant  knowingly  to  make  a  false  charge  or  aver- 
ment in  the  charging  part  of  the  bill,  equally  as  if  he  makes  a  false  statement  in  the  stating  part 
thereof.     Smith  vs.  Clark,  4  Paige  R..  368. 

RULE  14. 

In  bills,  answers  and  petitions,  which  are  to  be  verified  by  ^'^i-''"''?'' t*" 

'  r  1  J    verifying 

the   oath  of  the   party,  the   several    matters  stated,  charged,  p^'ere^  &c. 
averred,  admitted  or  denied,  shall  be  stated  positively,  or  upon 


xxii  CHANCERY  RULES. 

information  or  belief  only,  according  to  the  fact.  The  oath 
administered  to  the  party  shall  be,  in  substance,  that  he  has 
read  the  bill,  answer  or  petition,  or  has  heard  it  read,  and 
knows  the  contents  thereof,  and  that  the  same  is  true  of  his 
substaneeof  own  knowledge,  except  as  to  the  matters  which  are  therein 
be  stated  ill  statcd  to  be  on  his  information  or  belief,  and  as  to  those  mat- 
ters,  he  believes  it  to  be  true;  and  the  substance  of  the  oath 
shall  be  stated  in  the  jurat. 

The  jurat  should  be  drawn  in  the  form  prescribed  in  the  rule,  and  not  in  the  form  of  a  sepa- 
rate affidavit.     Stafford  vs.  Bryan,  2  Paige  R.,  46, 
The  form  of  the  jurat  is  as  follows: 

State  of  Michigan,  ^ 
County  of  J     ' 

On  this  day  of  before  me,  peraonally  appeared  the  above 

named  A.  B.,  and  made  oath  that  he  has  read  the  above  [bill]  [plea]  [answer]  [petition]  sub- 
scribed by  him,  (or  has  heard  it  read,)  and  knows  the  contents  thereof,  and  that  the  same  is 
true  to  his  own  knowledge,  except  as  to  the  matters  which  are  therein  stated  to  be  on  his  in- 
formation or  belief,  and  as  to  those  matters,  he  believes  it  to  be  true. 

RULE  15. 

Process.  AH  proccss,  unlcss  otherwise  directed,  shall  be  made  returna- 

ble a  day  certain,  (except  Sunday,)  either  in  vacation  or  in  term, 
not  less  than  ten  days  from  the  issuing  thereof,  and  if  process 
is  not  executed  before  the  return  day,  new  process  me^  be  ta- 
ken out,  of  course,  as  often  as  may  be  necessary,  or  an  alias 
or  pluries  may  be  issued. 

It  is  irregular  to  make  a  subpcena  or  any  other  process  returnable  on  Sunday.  Gould  vs. 
Spencer,  5  Paige  R.,  5i\.  No  process  for  appearance  nor  injunction  shall  be  issued  in  any 
cause  until  the  bill  shallhave  been  filed ;  R.  S.,  367,  Sec.  39  ;  except  where  apelilion  is  regarded 
as  a  substitute  for  a  bill.  In  such  case  the  petition  is  a  substantial  compliance  with  the  statute. 
In  the  matter  of  Hemiup,  1  Paige  R.,  317. 

Registers  arc  not  authorized  to  issue  process  in  blank,  except  process  to  appear  and  answer 
or  to  compel  the  attendance  of  witnesses.  Neither  has  a  solicitor  any  authority  to  alter  the 
test  of  an  execution  after  it  has  been  issued  by  the  register.  Merrill  vs.  Toxcnsend,  5  Paige  R., 
SO.     See  also.  Rule  93. 


Subpoena, 
how  served 


RULE  16. 

The  names  of  all  the  defendants  in  a  cause  shall  be  inserted 
in  the  subpoena.  It  may  be  served  by  delivering  a  copy  of  the 
writ,  subscribed  by  the  complainant,  his  solicitor,  or  the  offi- 
cer or  person  serving  the  same,  and  inscribed  "  copy,"  and 
showing  the  original,  under  the  seal  of  the  court,  at  the  time 


CHANCERY  RULES.  ^^"^ 

of  such  delivery,  to  the  defendant,  or  in  case  of  his  absence, 
to  his  wife,  or  servant,  or  some  member  of  his  family,  at  his 
dwelHng  house  or  place  of  abode.  The  service  may  be  on 
or  before  the  return  day  mentioned  in  the  subpoena. 

The  service  of  a  subpoena  on  the  liusbanJ  alone  13  good,  unless  llie  complainant  seeks  relief 
against  the  estate  of  the  wife  ;  in  which  c;  se  the  service  must  be  on  her  as  well  as  the  husband, 
and  she  may  put  in  a  separate  answer.  Ferguson  vs.  Smith,  2  Johns.  Ch.  R.,  139  ;  Leavilt  vs. 
Cruger,  1  Paige  R.,  421.  AVhere  the  defendant  is  absent  from  lionie  and  no  person  can  be  found  at 
hia  place  of  abode,  the  subpoena  may  be  served  on  his  clerk  or  servant  at  his  store  or  place  of 
business.     Smith  vs.  Parke,  -2  Paige  R.,  293. 

The  service  of  a  subpoena  upon  a  defendant  out  of  the  state  is  irregular.  Dunn  vs.  Dvnn, 
4  Paige,  424 ;  Pratt  ^  Barker  vs.  The  Bank  of  Windsor  ;  in  Chancery,  March  17,  1&41,  per 
Farnsworlh,  chancellor. 

The  personal  service  of  a  subpoena  upon  a  defendant  who  is  confined  in  the  stale  prison  for 
a  term  of  years,  is  regular  ;  and  the  court  will  not  set  aside  or  open  a  decree  by  default,  ob- 
tained upon  such  service,  unless  it  appears  that  ihe  defendant,  by  reason  of  his  situation,  was 
deprived  of  a  legal  and  meritorious  defence.    Phelps  vs.  Pkelpa.  7  Paige  R.,  150. 

RULE  17. 

Upon  the  return  of  the  subpoena  served,  as  directed  in  the  fe"r^ed," pro- 
preceding  rule,  the  defendant  shall  cause  his  appearance  to  be  '^^  '"^^" 
entered  in  twenty  days  from  the  return  day  of  said  writ,  and 
if  he  does  not  require  a  copy  of  the  bill,  as  hereinafter  provi- 
ded, he  shall  answer  in  forty  days  after  the  return  day  of  the 
subpoena,  or  in  default  thereof,  his  appearance  may  be  entered 
by  the  register,  and  the  bill  of  complaint  taken  as  confessed. 
If  a  copy  of  the  bill  is  required,  he  shall  answer  in  forty  days 
from  the  service  of  such  copy,  or  the  bill  may  be  taken  as  con- 
fessed. 

A  bill  can  only  be  taken  as  confessed  for  want  of  an  appearance  after  a  personal  service  of 
the  subpoena  on  the  defendant,  or  upon  an  order  for  advertising  under  the  statute.  Sawyer  vs. 
Sawyer,  3  Paige  R.,  63. 

Putting  in  an  answer  Is  an  appearance  on  the  records  of  the  court.  Livingston  vs.  Gibbons, 
i  Johns.  Ch  R,  94. 

Where  a  bill  is  filed  against  husband  and  wife,  the  husband  Is  bound  to  enter  a  joint  appear- 
ancefor  himself  and  wife.     Leavitt  vs.  Cruger,  1  Paige  Ji.,  421. 

Where  a  defendant  applies  to  set  aside  proceedings  to  compel  his  appearance  upon  the  ser- 
vice of  the  subpoena  upon  his  servant,  at  his  place  of  residence,  on  the  ground  of  an  alledged 
irregularity,  he  must  enter  a  conditional  appearance  in  the  suit,  so  that  the  complainant  may 
proceed  thereonif  the  defendant's  application  is  not  successful.  Davison,  vs.  Hastings,  2  Lond. 
Jurist,  464. 


attucbmeiit. 


xxiv  CHANCERY  RULES. 

RULE  18. 
Motion  for  When  the  subpoena  has  been  personally  served,  and  the  de- 
fendant  shall  fail  to  appear  and  answer  within  the  time  limited 
for  the  same,  the  complainant  may,  upon  filing  an  affidavit  that 
a  discovery  as  to  the  matters  charged  in  the  bill  is  necessary, 
move  the  court  for  an  attachment  against  such  defendant  or 
defendants,  without  further  notice. 

Upon  filing  an  affidavit  that  a  discovery  is  necessary,  the  complainant  is  entitled  to  a  compul- 
sory order,  that  the  defendant  answer  or  be  attached  ;  and  the  court  will  not,  in  that  stage  of 
the  cause,  inquire  whether  an  answer  is  actually  necessary  for  the  purpose  of  the  suit.  Staf- 
ford vs.  Brown,  4  Paige  R.,  360. 

In  a  suit  against  husband  and  wife,  if  an  order  to  answer  separately  has  not  been  obtained, 
the  husband  must  procure  the  joint  answer  of  himself  and  wife  to  be  put  in,  or  tlie  bill  may  be 
taken  as  confessed  against  both.  Biltoii  vs.  Bennett  aiid  wife,  4  Simons'  R.,  17-,  Leavitt  vs. 
Cruder  and  wife,  1  Paige  R.,  421. 

The  defendant  may  demur  to  a  bill,  if  he  has  not  obtained  an  order  for  further  time  to  answer, 
although  the  time  for  answering,  as  limited  by  the  order,  has  expired ;  provided  his  default  arid 
an  order  for  an  attachment,  has  not  been  entered.  But  where  he  is  in  coutemi)t,  and  an  at- 
tachment has  been  issued  against  him  for  want  of  an  answer,  he  cannot  demur  to  the  bill  with- 
out special  leave  of  the  court.  Per  Walworth,  chancellor,  in  Cunningham  vs.  Pell,  in  chan- 
cery, December  IS,  1S38,  not  reported.  Xcitlier  can  he,  in  such  a  case,  demur  to  a  part  of  the 
discovery  sought  by  the  bill,  and  answer  as  to  the  residue  of  the  bill.  Vigers  vs.  Lord  Audley, 
•2  Mijl.  fy  Craig's  Rep.,  40 

RULE  19.  . 

A  drfendmt      ^^  ^^^  defendant  appears  personally,  or  is  brought  into  court 
oi"aifach-     by  the  sheriff,  on  the  return  of  an  attachment  for  not  appear- 

inenl.toen-     .  .  •iili^i.'  *• 

terhisap-     uig  or  HOt  answcHng,  he  shall  enter  his  appearance  or  put  in 

j)earance,  ,  ,  .  i    i         i  • 

&c.,andpay  his  auswei*,  and  pay  the  costs  incurred  by  his  contempt,  in- 
cests. 

slanter,  or  within  such  time  as  the  court  shall  appoint,  or  be 
committed  until  he  complies.  Or  the  complainant  may  have 
an  order  that  the  bill  be  taken  as  confessed,  and  that  the  de- 
fendant be  committed  until  the  costs  are  paid. 

Where  a  party  is  in  contempt,  the  court  will  not  grant  an  application  in  his  favor,  which  is 
not  a  matter  of  strict  right,  until  lie  lias  purged  bis  contempt.  Johnson  vs.  Phinnetf,  1  Paige 
R.,  046. 

RULE  20. 

Order  that        When  the  defendant  has  appeared,  he  may  have  an  order  of 

piainantde-  coursc,  that  the  complainant  deliver  a  copy  of  the  bill  to  the 

of  the  bill,    defendant  or  his  solicitor  in  fifteen  days,   and  if  such  copy  is 

not  delivered  within  fifteen  days  after  the  service  ©f  notice  of 


CHANCERY  RULES.  xxv 

such  order,  or  within  such  further  lime  as  may  be  allowed  for 
that  purpose,  the  defendant,  on  fih'ng  an  affidavit  of  the  ser- 
vice of  such  notice,  and  that  no  copy  of  the  bill  has  been  ser- 
ved, may  have  a  decree  dismissing  the  suit,  with  costs,  for  want 
of  prosecution. 

Copies  of  pleadings  served  on  tlie  adverse  party,  should  he  perfect  copies  of  the  originals  on 
file,  including  the  signatures  of  counsel,  jurats,  &c.     LilUejohn  vs.  Munri,  3  Paige  R.,  280. 

RULE  21. 

If  the  complainant  requires  a  copy  of  the  defendant's  an- copy  of  an- 
swer to  be 

swer,  he  may  have  an  order,  of  course,  that  he  put  in  his  an-  served. 
swer,  and  serve  a  copy  thereof  in  forty  da3's  after  notice  of 
the  order,  and  if  the  defendant  does  not  file  his  answer  and 
serve  a  copy  thereof  within  tlie  time  prescribed  in  such  order, 
or  such  further  time  as  may  be  allowed  him  for  that  purpose, 
the  complainant,  on  filing  an  affidavit  showing  the  default,  may 
have  an  order  to  take  the  bill  as  confessed,  or  may  move  for 
an  attachment  against  him  without  further  notice. 

The  defendant  is  not  o'lliged  to  serve  a  copy  of  his  nnswer  on  the  conipl.iinant,  wlien  tlie  an- 
swer has  been  filed  before  tlie  order  for  an  answer  under  the  twenty-first  rule  has  been  entered, 
and  notice  tliereof  served.  Per  Farnsworth,  chancellor,  in  Hastings  vs.  Hale  et  al.,  June,  1839; 
MSS. 

RULE  22. 

The  order  to  take  the  bill  as  confessed  against  an  absent  or  rroceedin?3 

^  against  ab- 

concealcd  defendant,  and  for  a  reference  under  the  provisions  fV'  defend- 
of  chapter  two,  title  one,   pait  third  of  the  revised   statutes,  r.  s. 271, 

272. 

may  be  entered  of  course,  on  filing  the  proof  of  publication  or 
notice,  and  an  affidavit  that  the  defendant  has  not  appeared. 
But  the  order  requiring  the  defendant  to  a(>pear,  and  designa- 
ting the  paper  in  which  it  shall  be  published,  or  a  direction  to 
the  master  to  receive  the  testimony  of  the  complainant  as  evi- 
dence on  the  reference,  can  only  be  obtained  by  a  special  ap- 
plication to  the  court. 

An  order  of  reference  may  be  entered  of  course,  under  this  rule,  at  any  time  after  the  bill  has 
been  taken  as  coiilcssed  ;igainst  the  absrn'ees,  aliliough  there  are  o.her  defeiidonls  who  appear 
and  contest  the  suit.     Corning  vs.  Baxter,  G  Paige  R.,  178. 


Vol.  L 


^xvi  CHANCERY  RULES. 

RULE  23. 

Theexcep.        Exccptions  to  an  answer  shall  not  prevent  the  dissolution  of 

tions  niusl  be  1  U 

fiieii  within    an  iniunction,  or  the  discharge  of  a  ne  exeat,  unless  they  are 

ten  days,  to  J  '  "  j  , 

disSio^'n     filed  and  served  within  ten  days  after  notice  to  the  complain- 

uon? '"•'""'"  ant  or  his  solicitor,  that  the  answer  is  put  in.     If  exceptions 

are  taken,  the  defendant  may  give  a  written  consent  that  they 

be  forthwith   referred;  and  unless  the  complainant  procures 

Master's  re-  the  master's  report  in  favor  of  the  exceptions  within  ten  days 

port  to  be  -in 

procured       after  receivinsT  such  consent,  the  exceptions  shall  not  prevent 

wiihiii  ten  °  ^  * 

days.  ^j^g  dissolution  of  the  injunction,  or  the  discharge  of  the  ne 

exeat. 

A  party  is  not  at  liberty  to  give  notice  of  an  application  to  dissolve  an  injunction  on  bill  and 
answer,  for  a  lime,  which  is  within  ten  days  allowed  by  this  rule  to  except  to  the  answer.  Sat- 
terlec  vs.  Bargy,  3  Paige  R.,  142. 

The  court  will  not  enlarge  the  time  for  obtaining  the  master's  report  in  an  injunction  case, 
except  under  special  circimistances,  such  as  the  illness  of  the  master,  &c.  Davenport  vs.  WhU- 
more,  8  Simons'  R.,  251. 

RULE  24. 

Motion  not        If  exceptions  are  filed  within  the  time  prescribed  by  the  last 
till  the  ex-    rule,  it  shall  not  be  in  order  to  move  for  a  dissolution  of  the 

ceptions  are 

disposed  of.  injunction  or  ne  exeat,  on  bill  and  answer,  until  the  time  for 
procuring  the  master's  report  has  expired,  unless  a  report 
against  the  validity  of  the  exceptions  is  sooner  obtained. 

The  defendant  may  give  notice  of  an  application  to  dissolve  an  injunction  upon  bill  and  an- 
swer, immediately  upon  service  of  the  answer,  without  wailing  the  ten  days  allowed  to  the 
complainant  to  except;  but  if  exceptions  are  duly  served  within  the  time  prescribed  by  the 
twenty-third  rule,  it  will  be  a  suflScient  answer  to  the  application.  Parker  vs.  Williams,  4  Paige 
R.,  439. 

The  provisions  of  the  twenty-fourth  rule  are  not  applicable  to  the  case  of  an  answer,  to 
which  the  complainant  has  no  right  to  except  for  insufficiency.  If  the  whole  equity  of  the  bUl 
is  denied,  exceptions  for  impertinence  will  not  prevent  the  dissolution  of  an  injunction.  Liv- 
ingston vs.  Livingston,  4  Paige  R.,  111. 

An  injunction  granted  by  a  justice  of  the  supreme  court,  in  cases  where  the  statute  authori- 
zes it,  stands  upon  the  same  footing  as  if  granted  by  the  chancellor,  and,  in  either  case,  it  is 
competent  for  the  defendant,  in  vacation  and  before  answer,  to  move  to  dissolve  the  injunction 
for  want  of  equity  in  the  bill.     Cooper  et  al.  vs.  Alden  et  al.,  1  Harr.  Ch.  R.,  72. 

Where  the  equity  of  the  bill  is  denied,  the  injunction,  on  motion,  will  be  dissolved;  and 
where  it  is  shown  by  a  special  plea,  that  there  is  no  equity  in  the  bill,  it  is  the  same,  so  far  as 
regards  the  motion  to  dissolve,  as  though  the  equity  of  the  bill  was  fully  denied  by  the  answer. 
Eldred  vs.  Camp  et  al.,  1  Harr.  Ch.  R.,  162. 

On  a  motion  to  dissolve  an  injunction,  an  affidavit  is  admissible,  which  goes  to  show  that  the 
injunction  was  irregularly  issued,  or  that  the  officer  allowing  the  injunction  was  misled,  and 
induced  to  grant  the  injunction  contrary  to  law.  Carroll  vs.  The  Famun'  and  Mechanics'  bank, 
1  Harr.  Oh.  R.,  197. 


CHANCERY  RULES.  xxvii 

RULE  25. 

If  the  complainant  waives  th''.  necessity  of  the  answer  bein;r  ifiican- 

'  u'  swer  upon 

made  on  the  oath  of  the  defendant,  it  must  be  distinctly  stated  cj"iom^"'^' 
in  the  bill.     When  the   answer  is  put  in  without  oath,  it  may  {o"e"cepi"for 
be  excepted  to  for  scandal  or  impertinence;  but  the  complain-  "y!"  '^""^ 
ant  shall  not  be  at  liberty  to  except  thereto   for  insufficiency; 
but  all  material  allegations  in  the  bill,  which  arc  not  answered 
and  admitted,  may  be  proved  by  him  in  the  same  manner  as  if 
they  were  distinctly  put  in  issue  by  the  answer;  and  if  no  re- 
plication is  filed,  the  matters  of  defence  set  up  in  the  defend- 
ant's answer,  will,  on  the  hearing,  be  considered  as  admitted  {)'j."^^^^gj°p 
by  the  complainant,  although  the  answer  is  not  on  oath. 

A  pica  to  a  Ijill  in  chancery  must  be  verified  by  oath,  although  the  complainant  has  waived 
an  answer  on  oatli.     Hearlt  vs.  Coming,  3  Paige  R.,  i5GG. 

If  the  complainant  waives  an  answer  from  the  defendant  on  oath,  he  must  waive  it  as  to  the 
whole  bill.  And,  after  the  defendant  has  answered  tlie  original  bill,  the  complainant  cannot, 
by  an  amendment,  waive  the  necessity  of  an  answer  on  oath.  Burras  vs.  Looker,  4  Paige  R., 
227. 

The  general  denial  of  all  the  matters  of  the  bill,  not  before  answered,  with  which  an  answer 
usually  concludes,  is  sufficient  as  a  pleading,  to  put  the  several  matters  of  the  hill  in  issue. 
Stafford  vs.  Brown,  4  Paige  R.,  88. 

Where  the  defendants  are  not  jointly  interested  in  the  claim  made  agains*.  them  by  the  bill,  the 
complainant  may  waive  an  answer  on  oath  as  to  some  of  such  defendants  only.  Bulkley  vs. 
Van  Wtjck,  5  Paige  R.,  536. 

If  an  answer  on  oath  is  waived,  no  discovery  or  answer  is  necessary  tosupport  a  plea  which 
covers  the  whole  relief  sought  by  the  bill.    Fish  vs.  Miller,  5  Paige  R.,  26. 

RULE  26. 

The  answer  of  the  defendant  mav  be  sworn  to  before  any  Answer? out 

'  _  of  state,  how 

master  in  chancery,  or  other  officer  authorized  to  administer  >o')everifi- 

.'  '  ed. 

oaths  and  take  affidavits.  If  the  defendant  resides  out  of  the 
state,  the  answers  may  be  sworn  to  before  any  judge  of  a  court 
of  record,  in  the  state  where  the  answer  is  taken,  and  shall  be 
certified  to  have  been  sworn  and  subscribed  before  him,  speci- 
fying the  time  and  place  where  taken.  The  genuineness  of 
the  signature  of  such  judge,  the  existence  of  the  court,  and 
the  fact  that  such  judge  is  a  member  thereof,  must  be  certified 
by  the  clerk  of  the  court,  under  the  seal  thereof. 

The  ansvi'er  of  an  infant  defendant  must  be  sworn  to  by  bis  guardian,  ad  litem,  or  it  is  irregu- 
lar.   Rogers  \B.  Cruger,7  Johns.  Ch.  R,  581, 
A  joint  answer  of  the  husband  and  wife,  must  be  sworn  to  by  both,  unless  the  complainant 


xxviii  CHANCERY  RULES. 

consents  to  receive  the  answer  of  both  upon  the  oath  of  the  husband  only.     N.  Y.  Chemical  Co. 
vs.  Floicers  and  wife,  6  Paige  R.,  054. 

The  defendant  must  sign  the  answer,  althptigh  the  complainant  has  waived  the  necessity  of 
an  answer  on  oath.  It  cannot  be  put  in  upon  the  mere  signature  of  a  solicitor,  without  a  spe- 
cial order  of  the  court,  founded  upon  evidence  of  his  authority.  Dennison  vs.  Basfvrd,  7  Paige 
R.,  370. 

RULE  27. 
The  defend-       Wheti  a  cross  bill  is  filed,  the  coi:iiplainants  therein,  who  are 

ant  must  .  J  _  ,      . 

answerihe    defendants  in  the  orimnal  bill  shall  put  in  and  pertect  their  an- 

original  bill,  o  ' 

entuied'to'   swcr  to  the  Original  bill,  before  they  shall  be  eniitled  to  an  or- 
answe'"the    der  to  compcl   an   answer  to  the  cross  bill,   unless  the  court 

crossbill.  ,      ,,        ,  •  •     II       J-         A 

shall  otherwise  specially  direct. 

Thecomplainant  in  the  origiuiil  suit  is  not  bound  to  stay  proceedings  therein,  upon  the  filing 
of  a  cross  bill,  except  by  a  special  order  of  the  court;  and  he  is  entitled  to  notice  of  the  appli- 
cation for  such  order.     White  vs.  Buloid,  "2  Paige  R.,  164. 

RULE  28. 

Amend-  If  tile  bill  has  not  been  sworn  to,  the  complainant  may  amend 

coursetoa    it,  at  anv  time  befo''e  the  plea,   answer  or  demurrer  put  in,  of 

bill,  when  '  .' 

allowed.  course,  and  without  costs.  He  may  also  amend,  of  course, 
after  answer,  at  any  time  before  he  replies  thereto,  until  the 
time  for  replying  expires,  and  withoLU  costs,  if  a  new  or  fur- 
ther answer  is  not  thereby  rendered  necessary;  but  if  such 
amendment  requires  a  new  or  a  further  answer,  then  it  shall  be 
on  payment  of  costs  to  be  taxed.  He  may  also  amend  sworn 
bills,  except  injunction  bills,  in  the  same  manner,  if  the  amend- 
ments are  merely  in  addition  to,  and  not  inconsistent  with  what 
is  contained  in  the  original  bill;  such  amendments  being  verifi- 

Amend-       cd  by  oath,  as  the  bill  is  required  to  be  verified.    But  no  amend- 
ments not  of  .    .  .  ,  .,,      i      11    1  11  1-1  .1 

curse  in      mont  oi  au  iniunctiou  bill  shall  be  allowed  without  a  special 

injunction  ' 

t*'"-  order  of  the  court,  and  u])on  due  notice  to  the  adverse  party, 

Amend-       if  he  has  appeared  in  the  suit.     Amendments  of  course,  may 

merits  of  ,  i  •   i  -  i  i  c  i 

course  to  be  DC  Qiadc  wilhout  entering  anv  rule  or  order  for  that  purpose; 

made  with-  .  "       . 

out  entering  but  the  registcfs  shall  not  permit  any  amendments  to  be  made, 

an  order.  o  i  ./  ? 

unless  the  same  appear  to  be  duly  authorized.      And  in  every 

The  manner  r  ^  .        r  i  i     •  »  i-    • 

in  which       case  ot  an  amendment  ol  course,   the  complainant  s  soJicitor 

amen.huents      ,,1.1  r-i  r     1        1     n        ■    1        1 

are  to  be       shall  Cither  rile  a  new  entjrossment  ot  the  bill  with  the  register 

made.  ^  ° 

where  the  original  bill  is  filed,  or  furnish  him  with  an  engrossed 
copy  of  the  amendments,  containing  the  proper  references  to 


CHANCERY  RULES.  .  xxix 

the  folios  and  lines,    in  the  origin.al  bill  on  file,  Wi'/v^fe  such 
amendmenls  are  to  be  inserted  or  made.     But  no  amen'  i.ient  service  of 

iiiiiriKlnieiits 

shall  be  considered  as  made,  until  the  same  is  served  upon  the  ^^'"■"  »e=es- 

^  sary. 

adverse  party,  if  he  has  appeared  in  the  cause. 

An  original  bill  cannot  I'e  amemlcd  by  incorporating  therein  matters  which  have  irisen  subse- 
quent to  the  commencement  of  the  suit ;  such  mutters  should  be  stated  in  a  supplemental  bill. 
Stafford  vs.  Hamtitl.  1  Paige  R,  200. 

An  injunction  bill  will  not  be  amended,  unless  the  proposed  amendments  are  distinctly  stated 
and  sworn  to  ;  and  the  application  to  amend  must  be  made  as  soon  as  the  necessity  of  an  amend- 
ment is  discovered.     Rogers  vs.  Rogers,  1  Paige  R.,  -lit 

RULE  29. 

If  the  defendant  demurs  to  the  bill,  for  the  want  of  parties,  ^^>"end- 

'  1  meiit.s  of 

or  for  any  other  defect  which  does  not  go  to  the  equity  of  the  Semufrlr'." 
whole  bill,  the  complainant  may  amend  of  course,  on  payment 
of  costs,  at  any  time  before  the  demurrer  is  noticed  for  argu- 
ment, or  within  ten  days  after  the  receiving  a  copy  of  the  de- 
murrer; and  in  all  cases  of  demurrer  for  causes  not  within  the 
former  part  of  this  rule,  the  complainant's  right  to  amend,  and 
the  terms  on  which  amendments  may  be  permitted,  shall  be  in 
the  discretion  of  the  court. 

Where  a  mere  formal  objection  to  a  bill  is  made  by  demurrer,  ore  tenus,  the  complainant  will 
be  permitted  to  amend,  without  costs.     Garlick  vs.  Strong,  3  Paige  R.,  410. 

Upon  the  allowance  of  .i  demurrer,  upon  the  grounj  of  a  formal  defect  in  the  bill,  the  com- 
plainant will  be  allowed  to  amend,  if  his  counsel  has  acted  under  a  mistake  as  to  the  practice. 
McEltcian  vs.  Story,  3  Paige  R.,  505. 

RULE  30. 

Where  the  answer  is  excepted  to  as  insufficient,  and  the  de-  Ammd- 
fendant  submits  to  answer  further,  or  the  answer,  on  reference,  "i^atfer 

-  .  rn     ■  insufficient 

IS  iound  msutticienl,   the  complainant  may  amend  the  bill,  of  ='"*""• 

course,  and  without  costs,  at  any  time  within  ten  days  after 

the  defendant  submits  to  answer  any  of  the  exceptions,  or  after 

confirmation  of  the  masters  report,   if  the  defendant  does  not 

submit  to  answer  any  of  the  exceptions;  and  the  defendant 

shall  answer  the  amendments  and  exceptions  together.     If  a  ^'"■"p'n'nnnt 

^  ~  may  .jinrnd 

plea  or  demurrer  to  the  bill  be  overruled,  the  complainant  may,  I'f'f^'^^l^  ^^ 
withi^n  ten  days  thereafter,  amend  his  bill,  of  course,  and  with-  overru'ild. 
out  costs;  and  in  all  cases  where  the  complainant  is  permitted 
to  amend  his  bill,  if  the  answer  has  not  been  put  in,  or  a  fur- 


XXX 


CHANCERY  RULES. 


Common  or- 
ders, how 
obtained. 


ther  aa?«w'er  is  necessary,  the  defendant  shall  have  the  sanfie 
tim£-'''to  answer,  after  such  amendment,  as  he  originally  had. 
But  no  amendments  of  course,  of  injunction  bills,  are  to  be  al- 
lowed, under  this  or  the  preceding  rule,  nor  any  amendments 
which  are  inconsistent  with  the  original  sworn  bill. 

The  complainant  cannot  amend,  under  this  rule,  by  leaving  out  the  name  of  the  defendant 
whose  answer  is  insufficient,  and  thus  discontinue  the  suit  as  aganisthim,  without  costs.  Chase 
vs.  Durham,  1  Paige  JL,  572. 

RULE  3L 

Orders  to  which  a  party,  by  the  rules  and  practice  of  the 
court,  is  entitled,   of  course,  without  showing  special  cause, 
shall  be  denominated  common  orders;  and  orders  made  on  spe- 
cial application  to  the  court,  shall  be  denominated  special  or- 
ders.    All  common  orders,  and  orders  by  the  consent  of  the 
parties,  such  consent  being  in  writing  and  signed  by  such  par- 
ties, or  their  solicitors  or  counsel,  and   filed,    may  be  entered 
with  the  register,  or  assistant  register,  in  the  common  rule 
book  kept  in  his  office,  at  the  instance  of  the  party,  or  his  soli- 
citor, at  the  peril  of  the  party  taking  such  order;  and  the  day 
on  which  the  order  is  made,  shall  be  noted  in  the  entry  there- 
of. All  orders  made  by  the  special  direction  of  the  court,  shall 
be  entered  in  the  record  of  the  minutes  of  the  court,  as  hereto- 
fore has  been  usual. 

A  decree  or  order  entered  by  consent,  cannot  be  set  aside  on  motion,  unless  there  is  fraud  or 
collusion  between  the  solicitors  or  counsel  of  the  parties.  Morrell  vs.  Lawrence,  12  John's 
R.,  521. 

A  party  is  not  bound  to  disregard  an  order  of  course,  which  has  been  irregularly  entered  by 
the  adverse  parly,  who  refuses  to  waive  the  order;  but  he  may  apply  to  the  court  to  discharge 
the  irregular  order,  and  may  in  the  mean  time  suspend  proceedings  which  are  inconsistent  with 
such  order.     Osgood  vs.  Joslir^S  Paige  R.,  195. 

RULE  32. 

Each  party        When  the  defendant  pleads  or  demurs  to  a  bill,  the  complain- 

may  notice  a  '  ' 

nlurrer  for    ^"^  ^^'^^^  havo  twcnty  days  to  file  a  replication  to  his  plea,  or 

argument,     ^meud  his  bill;  and  if  he  does  not  take  issue  on  the  plea,  or 

amend  his  bill  within  that  time,   either  party  may  notice  the 

plea  or  demurrer  for  argument,  at  the  next  or  subsequent  term. 

If  the  plea  is  allowed,  the  complainant  may,  within  ten  days 


Special  or- 
Jers,  lio%v 
entered. 


CHANCERY  RULES.  xxxi 

after  notice  of  such   allowance,    take  issue  on  the  plea,  upon 
payment  of  the  costs  of  the  hearing  thereon. 

Where  issue  is  taken  upon  :i  ple^,  and  the  truth  of  sucli  ple:i  is  cstabllshcil  by  llie  proofs,  the 
bill  must  be  dismissed  ;  as  the  court  in  that  stage  of  the  proceedings  does  not  in(iuire  or  decide 
as  to  the  validity  of  the  matters  pleaded  as  a  defence  to  the  suit.  Downs  vs.  McMichael,  2  Paige 
R.,  139. 

If  a  plea  is  falsified  by  the  proofs,  the  complainant  may  examine  the  defendant  on  interroga- 
tories, when  a  discovery  is  necessary.     Sanger  vs.  DeMcyer,  2  Paige  R.,  574. 

RULE  33. 

If  a  plea  or  demurrer  is  overruled  as  frivolous,  era  plea  up-  n"  n 'I'-fet'd- 

r  '11      ant  puts  in  a 

on  issue  thereon  is  found  to   be  untrue,  the   complainant   may  vu,'„*"„"pi'ifi' 
have  an  order  to  take  the  bill  as  confessed,  or  he  may  compel  IxJ^Zun^J" 
the  defendant  to  answer  the  bill,  at  his  election.     In  all  other  confessed'!* 
cases,  if  the  plea  or  demurrer  be  overruled,  neither  a  further 
plea  or  demurrer  shall   be  received;  and   the  defendant  shall 
answer  the  bill  and  pay  the  costs  of  the  hearing,  within  twen-  Afterapiea 

or  deiiiuner 

ty  days  after  notice  of  the   order  overruling   the   plea  or  de-  "f  ?\",'^[.[,"t*'f^ 
murrer,  or  such  other  time  as  may  be  prescribed  by  the  court  '^"X"twen. 
in  such  order.     If  he   fails  to  put  in  his  answer  and  pay  the*^*^*^^^* 
costs  within  the  time  prescribed,  the  bill  may  be  taken  as  con- 
fessed, and   the   matter   thereof  decreed  accordingly;  or  the 
complainant  may  have  an  attachment  to  compel  an  answer. 

After  a  plea  or  demurrer  has  been  overruled,  the  defendant  cannot  have  an  ex  parte  order  for 
further  time  to  answer,  beyond  the  lime  allowed  by  the  order  overruling  the  pica  or  demurrer. 
Trim  vs.  Baker,  0  7'ur.  ^  Russ.  R.,  253.  i 

This  rule  is  not  applicable  to  the  case  of  a  plea  or  demurrer  to  a  part  of  the  bill  only  and  an 
answer  to  the  residue  thereof.  In  such  a  case,  if  the  plea  or  demurrer  to  a  part  of  the  bill  is 
overruled,  the  complainant  must  except  to  the  answer  already  put  in  for  insutfieiency,  when  he 
wishes  to  obtain  a  further  answer  to  the  part  of  the  bill  which  was  attempted  to  be  covered  by 
the  plea  or  demurrer.    Kuyper  vs.  The  Reformed  Dutch  Church,  G  Paige  R.,  570. 

RULE  34. 

When  the  answer  is  to  the  whole  bill,  the  complainant  shall  Exceptions 

'■  to  be  hied   in 

have  twenty  days  after  notice  that  such  answer  is  put  in,  to  ^""^"'y ''"y^- 
except  to  the  same,  or  if  the  answer  is  to  part  of  the  bill  only, 
he  shall  have  twenty  days  after  the  plea  or  demurrer  to  the 
residue  of  the  bill  lias  been  allowed  or  overruled,  to  except  to 
such  answer;  at  the  expiration  of  which  time,  if  no  exceptions 
are  taken,  and  no  order  for  further  time  has  been  granted,  the 
answer  shall  be  deemed  sufficient.     If  the  complainant  excepts 


xxxii  CHANCERY  RULES. 

ailimly'^^ubl  ^^  ^^^  aiisvver  for  insufficiency,  the  defendant  may,  within  eight 
swer"an"'of  davs  aftei*  scrvicc  of  a  copy  of  the  exceptions,  give  a  written 
uoiir'^^''"    notice  of  his  submission  to  answer  any  or  all   of  such  excep- 
tions; and   he  shall   be  liable  for  the   costs   of  the  exceptions 
"which  he  submits  to  answer. 

The  answer  of  an  infant,  by  his  guardian,  ad  litem,  cannot  be  excepted  to  for  insufficiency. 
Legett  vs.  Sellon,  3  Paige  R.,  84.  Where  ihere  is  a  plea  or  demurrer  to  a  part  of  the  bill  and 
an  answer  to  tlie  residue,  the  complainant  may  except  to  such  answer  before  the  argument  of 
the  plea  or  demurrer.  But  the  effect  of  such  except  ons  is  to  admit  tlie  validity  of  such  plea  or 
demurrer.    Boyd  vs.  Mills,  13   Ves.  R.,So\   Mitf.  PL,  317. 

RULE  35. 

Complainant      Where  exccptions  to  an  answer  for  insufficiency  are  not  sub- 
to  refer  the  '  •' 

tendays!"*'"  i^^J^ted  to,  within  the  time  prescribed  by  the  preceding  rule,  the 
complainant,  at  any  time  within  ten  days  thereafter,  may  have 
an  order,  of  course,  to  refer  the  exceptions  not  submitted  to 
by  the  defendant,  to  a  master.  If  the  exceptions  not  submit- 
ted to  are  not  referred  within  the  time  specified,  they  shall  be 
considered  as  abandoned,  and  the  answer  as  to  such  excep- 
tions shall  be  deemed  sufficient. 

The  order  to  refer  the  exceptions  must  not  only  be  entered,  but  the  same  must  be  served  or 
notice  thereof  given  within  the  ten  days,  or  the  exceptions  will  be  considered  as  abandoned. 
Taylor  vs.  Harrison,  1  Myl.  fy  Craig  R.,  274. 

RULE  36. 

On  reference      If  a  Complainant  refers  a  second  or  third  answer  for  insuffi- 

of  second  or 

third  :.nswer  ciencv  on  the  old  exceptions,  the  particular  exceptions  to  which 

the  excep-  •'  i  '  i  i 

liaied."  ""^    ^^6  requires  a  further  answer,  shall  be  stated  on  the   order  of 
reference.     And  if  he  does  not  refer  such  second  or  third  an- 
swer for  insufficiency  within  ten  days  after  the  same  is  put  in, 
such  answer  shall  be  deemed  sufficient. 

Where  the  complainant  amends  his  bill  and  the  defendant  answers  the  amendments  and  ex- 
ceptions together,  if  the  complainant  wishes  to  refer  the  further  answer  on  the  old  exceptions, 
as  well  as  to  file  new  exceptions  to  the  answer  of  the  amendments,  he  must  file  his  new  ex- 
ceptions within  the  ten  days  allowed  for  referring  the  further  answer  on  tlie  old  exceptions; 
and  then,  afier  wailing  the  usuul  time  for  the  defendant  to  sulimit  to  the  new  exceptions,  he 
must  refer  the  answer  upon  the  old  exceptions  which  are  not  answered,  and  upon  such  of  the 
new  exceptions  as  are  not  submitted  to.     Hart  vs.  Small,  4  Paige  R.,  333. 

Where  the  further  answe-  is  an  answer  to  exceptions  only,  if  the  complainant  wishes  to  ex- 
cept for  impertinence,  he  must  file  such  exceptions  within  the  ten  days  allowed  for  referring  the 
answer  on  the  old  exceptions,  or  it  will  be  too  late.     Idem. 

New  exceptions  for  insufficiency,  to  an  answer  to  amendments  may  be  filed  within  twenty 


CHANCERY  RULES.  xxxiii 

days  after  the  pulling  in  of  tlie  answer;  bui  if  not  filed  wiiliin  tlie  first  len  days,  ibe  reference 
must  be  of  the  new  exceptions  only.    Idem. 

RULE  37. 

Exceptions  to  any  pleading,  or  other  matter  pending  before  r^ce^^r^s 
the  court  for  scandal  or  impertinence,  shall  be   taken  in   the  "^^^.'^p^.J,';^ 
same  manner  as  exceptions  to  an  answer  for  insufficiency,  and  ^oi'^  taken, 
may  be  submitted  to,  in  like  manner  and  within  the  same  time. 
If  they  are  not  submitted  to,  the  party  excepting  shall  refer 
them  in  the  same  manner,  or  they  shall  be  considered  as  aban- 
doned; and  if  such  exceptions   are  to   an  answer,  the   answer 
thenceforth  shall  be  deemed  sufficient. 

Exceptions  for  scandal  or  impertinence  must  point  out  the  exceptionable  inaHer  with  suffi- 
cient ccrlaliity  to  en.-.lile  the  officer.-!  of  the  court  to  strike  out  such  exceptionable  matter  if  the 
exceptions  are  allowed.     WTiitmarsh  vs.  Campbell,  1  Paige  R.,  G45. 

An  exception  for  impertinence  must  be  supported  in  toto,  and  if  it  includes  any  part  of  the 
pleading  which  is  relevant  and  proper,  the  exception  must  fail  altogether.  Van  Rensellaervs. 
Brice,  4  Paige  R.,  174  ;  Desplaccs  vs.  Gorie,  1  Edw.   Ch.  R  ,  350. 

AVhere  exceptions  for  impertinence,  if  allowed,  would  niulilate  the  pleadings  excepted  to, 
unnecessarily,  by  breaking  up  seniences  and  clauses  which  ought  to  stand  or  full  together,  such 
exceptions  sliould  be  disallowed.     Franklin  vs.  K^.eler,  4  Paige  R.,  382. 

Where  an  aiBdavit  read  upon  a  motion  is  scandalous  and  impertinent,  it  is  competent  for  the 
Court,  upon  the  hearing  and  decision  of  the  motion,  and  without  any  formal  exceptions  beifig 
filed,  to  order  the  scandalous  and  impertinent  matter  to  Ijc  expunged  with  costs,  to  be  paid  by 
the  party  or  by  his  solicitor.     Powell  vs.  Kane,  5  Paige  R,,  265. 

But  the  court  will  not  refer  an  affidavit  for  impertinence  merely,  where  it  is  not  also  scanda- 
lous, after  such  affidavit  has  1;ccn  answered.    In  Re  Burton,  1  Rnss.  R.,  Ci^O. 

RULE  38. 

Whenever  an  answer  or  other  pleadincf  or  proceeding  is  re-  xhemas- 

,  ler's  report 

ferred  for  insufficiency,  scandal   or  impertinence,  the  excep-  "•"^''"^p,;,. 
tions  shall  be  considered  as  abandoned,  if  the  party  obtaining  "yl^^nM- 
the  reference  shall  not  procure  and  file  the  master's  report '*^"''''^^' 
within  fifteen  days  from  the  date   of  the  order  of  reference; 
unless  the  master  shall,  within  that  time,  certify  that  the  par- 
ty obtaining  such  reference  has  not  been  guilty  of  an  unrea- 
sonable delay,  and  that  further  time,  to  be  specified  in  the  cer- 
tificate, is  necessary  to  enable  the  master  to  make  a  satisfacto- 
ry report;  in  which  case  the  exceptions  shall  be  considered  as 
abandoned,  if  the  I'eport  be  not  obtained  within   the  further 
time  so  stated.     And  if  the  exceptions  were  to  an  answer,  it 
shall  thenceforth  be  deemed  sufficient. 
Vol.  I.  5* 


xxxiv  CHANCERY  RULES. 

The  muster  is  only  entitled,  under  this  rule,  to  grant  one  certificate  extendiug  the  time  lor  ob- 
taining the  master's  report.     Watkina  vs.  Redmond,  2  Loiid.  Jurist,  152. 

RULE  39. 

The  master       If  Oil  a  reference   of  exceptions  to  an  answer,  or  the  refer- 
forpVmgin  ence   of  a  second   answer  on   the   old  exceptions,  the  master 

further  an-  rr^    ■  i         i      1 1    f  ■  r 

swer.  shall  find  the  answer  insufficient,  he  shall  fix  a  tune  lor  putting 

in  a  further  answer,  and  specify  the  same  in  his  report. 

RULE  40. 

Report tobe-      The  master's  report  on  exceptions,  shall  be  delivered  to  the 

come  abso-  '■ 

hue^ineight  party  obtaining  the  reference,  who  shall  forthwith  file  the 
same  in  the  proper  office;  and  if  he  does  not  except  to  the  re- 
port within  eight  days  thereafter,  it  shall  become  absolute  as 
against  him.  But  the  adverse  party  shall  have  eight  days  af- 
ter service  of  notice  of  filing  the  i-eport  to  except  to  the  same, 
and  if  he  does  not  except  within  that  time,  it  shall  become  ab- 
solute as  against  him,  without  any  order  for  that  purpose.  If 
none  of  the  exceptions  to  an  answer  are  submitted  to  by  the 
defendant,  or  allowed  by  the  master,  the  answer  shall  be  deem- 
ed sufficient  from  the  time  such  report  becomes  absolute  as 
against  the  complainant. 

RULE  4L 

Order  toex-       jf  tj^g  master  reports  that  any  thing  contained  in  any  plead- 

punge  mi-  i^  j  id  •'    i 

mauer!"^  ing  or  proceeding,  is  scandalous  or  impertinent,  the  party  ex- 
cepting, on  filing  proof  that  the  report  has  become  absolute 
against  the  adverse  party,  may  have  an  order  of  course,  that 
the  master  making  the  report,  expunge  the  scandalous  or  im- 
pertinent matter;  and  that  the  adverse  party  pay  the  costs  of 
the  exceptions  and  the  proceedings  thereon,  within  twenty  days 
after  the  service  of  a  copy  of  such  order  and  of  the  taxed  bill 
on  him  or  his  solicitor.  When  the  adverse  party  submits  to 
the  exceptions,  the  same  order  may  be  obtained  on  filing  the 

Master's  re-  noticc  of  submission.     If  the  master  disallows  an  exception  for 

port  disal-  i      ii   i       J2       i  j 

lowing  ex-    scandal  or  impertinence,  his  report  shall  be  final,  and  no  excep- 

ceptions  for  r  '  ^ 

fmpe^unence  ^ions  to  the  report  in  that  respect  shall  be  allowed;  but  it  shall 
to  be  final.    ^^^^  preclude  the  party,  upon  the  hearing  of  the  cause,  or  upon 


CHANCERY  RULES.  xxxv 

the  taxation  of  the  general  costs  in  the  suit,  from  insisting  that 
the  matter  excepted  to,  was  in  fact  impertinent. 

Where  the  master  overrules  a  part  of  the  exceptions,  and  the  complainant  excepts  to  the  re- 
port, he  cannot  enter  a  common  order  to  answer  the  exception;!  submitted  to  by  the  defendant, 
or  which  have  been  allowed  by  the  master,  until  his  exceptions  to  the  report  are  finally  disposo^l 
of  by  an  order  of  the  court  thereon.     Neto  York  Fire  Ins.  Co.  vs.  Lawrence,  0  Paige  R.,  511. 

RULE  42. 

On  exceptions  to  answer  for  insufficiency,  if  all  the  excep-  f^^^J.^^^. 
tions  are  submitted  to  by  the  defendant,  or  a  part  are  submit-  *'^^'^''- 
ted  to,  and  the  rest  abandoned,  or  are  disallowed  on  reference, 
the  complainant  may  have  an  order,  of  course,  that  the  defend- 
ant put  in  a  further  answer  and  serve  a  copy  thereof  within 
twenty  days  after  notice  of  the  order,  and  pay  the  costs  of 
the  exceptions. 

RULE  43. 

If,  on  a  reference  of  exceptions,  or  the  reference  of  a  se-  order  for 

further  an- 

cond  answer  upon  the  old  exceptions,  the  answer  is  found  in-  swer  after 

*  '  '  reterence. 

sufficient,  and  the  master's  report  has  become  absolute  against 
the  defendant,  the  complainant  may  have  a  similar  order  of 
course,  to  put  in  a  further  answer,  and  pay  the  costs,  within 
the  time  specified  in  the  master's  report. 

The  defendant,  if  he  gets  a  decree  for  costs,  has  no  right  to  charge  the  complainant  with  the 
extra  expense  occasioned  by  the  putting  in  of  an  answer  which  was  insufiicient.  Stafford  vs. 
Bryan,  2  Paige  R.,  51. 

RULE  44. 

In  the  cases  specified  in  the  two  preceding  rules,  the  defend-  costs  to  be 

'  1  o  »  served  ten 

ant  shall  be  entitled  to  a  copy  of  the  taxed  bill  of  costs  at  least  '''*>!'  leforc 

'■  •'  expiration  of 

ten  days  before  the  time  for  putting  in  the  further  answer  ex-  gwp/°°"' 

pires,  or  he  may  put  in  such  answer  without  paying  the  costs. 

But  the  complainant  may  afterwards  proceed  by  execution  or 

attachment  to  compel  payment  thereof,  if  they  are  not  paid 

within  twenty   days  after  service  of  a  copy  of  the  taxed  bill 

on  the  defendant  or  his  solicitor.     And  if  the  complainant  has  Aftemmend- 

inentdefend- 

amended  his  bill,  so  as  to  require  an  answer  to  the  amendments  a"'«ohave 

*  same  lime  fo 

as  well  as  the  exceptions,  the  defendant  shall  have  the  same  ''"''^'"'' 


xxxvi  CHANCERY  RULES. 

time  to  answer  the  amendments  and  exceptions  together,  as  he 
originally  had  to  answer  the  bill;  and  the  order  to  answer  shall 
be  varied  accordingly. 

Where  a  parly  has  appeared  by  a  solicitor,  tlie  service  of  an  order,  even  for  the  purpose  of 
bringing  such  party  into  contempt  for  not  obeying  the  same,  is  properly  served  on  the  solicitor. 
Stafford  vs.  Brown,  3  Paige  R.,  360. 

RULE  45. 

Ordertotake      If  the  defendant  does  not  put  in  a  further  answer,   and  pay 

bill  as  con-  '  '■ 

fessed  for    the  costs  withiii  the  time  prescribed,    or  within  such  further 

neglect  to  an-  i^ 

Bwerfuritier.  ^jj^^g  ^g  ^^^y.  ^^  allowed  by  the  court  for  that  purpose,  the  com- 
plainant, on  filing  an  affidavit  showing  such  defaultj  may  have 
an  order  of  course,  to  take  the  bill  as  confessed,  or  may  move 
for  an  attachment  against  the  defendant,  without  further  no- 
tice, 

RULE  46. 

t^^rrepon        ^hc  argument  of  exceptions  to  a  master's  report  on  excep- 
uonMo'^be    tions,  shall  be  heard  as  a  special  motion.     Either  party  may 
rial  motion,  notlcc  the  samo  for  hearing,  and  the  party  excepting  to  the  re- 
port, shall  furnish  the  necessary  papers  for  the  court;  and,  if 
.he  neglect  to  do  so,  the  report  may  be  confirmed.     But  if  both 
parties  have  excepted  to  the  report,  each   shall  furnish  copies 
of  his  own   exceptions,   and  the  party  obtnining  the  reference 
Costs  of  the  shall  furnish  such  other  papers   as  may  be  necessary.     The 

hearing  of  r    r  j  j 

exceptions  to  oosts  of  the  hearing  on  exceptions  to  a  report  upon  exceptions, 
shall  be  in  the  discretion  of  the  court;  but  neither  party  shall 
be  entitled  to  costs  as  against  the  othei",  unless  he  succeeds  as 
to  the  major  part  of  the  exceptions  to  the  report.  And  where 
the  party  succeeding  as  to  the  major  part,  does  not  succeed  as 
to  all  the  exceptions  to  the  report,  his  costs  of  the  hearing,  to 
be  allowed  against  the  adverse  party,  shall  not  be  taxed  at  a 
sum  exceeding  ten  dollars. 

RULE  47. 

Costs  of  re-       When  exceptions  are  taken  to  an  answer  for  insufficiency, 

ference  not  r  -^  ' 

uniess'aTof  ^^  to  any  pleading  or  proceeding  for  scandal  or  impertinence, 
tionf  afe"     thc  party  excepting  shall  be  entitled  to  the  costs  of  the  excep- 

sustained. 


CHANCERY  RULES.  xxxvii 

tions  which  arc  submitted  to.  and  those  which  arc  finally  al- 
lowed after  reference  to  a  master;  but  neither  parly  shall  be 
entitled  to  costs  upon  the  reference  of  exceptions,  unless  he 
finally  succeeds  as  to  all  the  exceptions  which  are  referred. 
The  costs  on  exceptions  shall  not  be  taxed  until  all  exceptions  cosu  hicii;- 

'  dediti  one 

are  submitted  to,  abandoned,  allowed,   or  finally  disposed  of;  i>-'i, offset. 
and  then  the  whole  costs  to  which  the  exceptant  is  entitled, 
shall  be  included  in  one  bill,  and  the  adverse  party  may  offset 
any  costs  to  which  he  is  entitled. 

Where  several  exceptions  to  an  answer  are  allowed  by  the  master,  ami  the  liefesliint  takes 
one  general  exception  to  the  master's  report,  that  exception  must  be  overrulei!,  if -iny  of  tl.e 
exceptions  to  tlie  answer  arc  well  taken.     Candler  vs.  'Petttt,  1  Paige  iJ.,427. 

RULE  48. 
Every  cause  shall  be  deemed  at  issue  on  filing  a  general  re-  ^Jeof^  fiVng 
plication  to  the  answer,  and  no  special  replication  shall  be  filed  replication. 
but  by  leave  of  the  court,  on  cause  shown.     If  the  complain- 
ant does  not  reply  to  the  defendants  answer  within  twenty 
days  after  it  is  deemed  to  be  sufficient,  he  shall    bo  precluded 
from  replying,  and  the  cause  shall  stand  for  hearing  on  bill  and 
answer;  and  either  party  may  notice  it  for  hearing  as  soon  as 
it  is  in  readiness  for  hearing  against  the  other  defendants,  if 
any  there  are. 

If  the  complainant  wishes  to  prove  at  the  hearing,  any  fact  which  is  not  admitted  by  the  an- 
swer, he  mnst  file  a  replication  to  the  answer.  Where  the  fact  to  te  proved  is  a  matter  of  re- 
cord merely,  the  complainant,  after  filing  his  replication,  may  enter  an  order  to  produce  wit- 
nesses, and  give  notice  to  the  adverse  party  of  his  intention  to  produce  the  record,  or  an  exem- 
plification thereof,  at  tlic  hearing,  and  then  may  enter  the  usual  order  to  close  proofs.  Mills  vs. 
Pittman,  1  Paige  R.,  490. 

Where  the  complainant  amends  his  bill  after  answer,  he  cannot  file  a  replication  to  the  ori- 
ginal answer,  until  the  time  for  answering  the  amended  bill  expires,  although  he  waives  a  fur- 
ther answer  to  tlie  amendments.     Richardson  vs.  Richardson,  5  Paige  R.,  5?. 

RULE  49. 

Where  the  cause  stands  for  hearing  on  bill  and  answer  against  ii"  compiam- 

'~  '^  ant  does  not 

part  of  the  defendants,  if  the  complainant  does  not  use  due  dili-  ^|n,.e"5if5'''' 
gence  in  proceedings  against  the  other  defendants,  any  of  those  mfs-ged.*^'"' 
who  have  perfected  their  answer  may  apply  to  dismiss  the  bill 
for  want  of  prosecution;  and  on  such  application,  further  time 
shall  not  be  allowed  to  the  complainant  of  course,  without  any 
excuse  shown  for  the  delay. 


xxxvHi  CHANCERY  RULES. 

A  motion,  by  a  defendant,  to  dismiss  the  bill  for  want  of  prose<;ution,  can  only  be  made  when 
there  are  other  defendants  against  whom  the  cause  is  not  in  readiness  for  hearing,  by  the  neg- 
lect of  the  complainant  to  expedite  the  proceedings  against  them.  When  the  defendant  him- 
self is  in  a  situation  to  notice  the  cause  for  hearing,  a  motion  to  dismiss  for  want  of  prosecu- 
tion, will  not  be  granted.     Whitney  vs.  The  Mayor,  ifc,  of  New  York,  1  Paige,  548. 

RULE  50. 

authorfzld         When  a  cause  is  at  issue  by  replication  to  a  plea  or  to  the 
o^dTr'forThe  defendant's  answer,  if  either  party  desires  an  examination  of 

examination         .  ,  .  .,.,.,  ^  . 

ofwitnesses.  wituesscs,  hc  may  at  any  time  within  thirty  days  alter  issue 
is  joined,  upon  petition  to  the  register,  have  an  order  of  refe- 
rence to  such  master  as  may  be  necessary,  to  take  such  testi- 
mony, by  giving  eight  days'  notice  to  the  adverse  party.  And 
if  such  adverse  party  shall  desire  to  join  in  the  application,  he 
shall  give  notice  of  the  same  to  the  register,  and  the  order 
shall  be  for  the  examination  of  witnesses  on  the  part  of  the 
complainant  and  defendant.  Either  party  may  proceed  to  take 
the  testimony  of  their  witnesses  under  such  order,  upon  giving 
ten  days'  notice  to  the  other,  of  the  names  and  places  of  abode 
of  the  witnesses  to  be  examined,  and  the  time  and  place  of  such 
examination. 

Proofs  cannot  he  taken  as  to  one  defendant  to  whose  answer  a  replication  is  filed,  until  the 
answers  of  the  other  defendants  have  been  perfected,  or  the  bill  has  been  taken  as  confessed 
against  them.      Vermillyea  vs.  Odell,  4  Paige  R.,  121. 

Where  a  party  has  not  received  due  notice  of  the  examination  of  a  witness,  the  irregularity 
is  cured  by  a  neglect  to  complain  of  it  in  season.     Skinner  vs.  Dayton,  5  John.  Ch.  R.,  191. 

RULE  5L 

May  appoint      If  a  party  wishes  to  examine  witnesses  residing  out  of  the 

commission-  i  ./  o 

state,  or  more  than  thirty  miles  from  the  residence  of  a  mas- 
ter, or  when  all  the  masters  are  interested,  living  within  that 
distance,  as  counsel  or  otherwise,  either  party  may,  at  any  time 
within  thirty  days  after  issue  is  joined,  as  prescribed  in  the 
preceding  rule,  present  a  petition  to  the  register  of  the  circuit 
where  the  suit  is  pending,  stating  the  names  and  residences  of 
the  witnesses  and  of  the  pei'son  or  persons  proposed  as  com- 
missioners, and  praying  that  a  commission  may  be  issued  to 
take  the  examination  of  such  witnesses;  and  ten  days'  notice 
of  the  application  shall  be  given  to  the  adverse  party,  li  the 
adverse  party  does  not  appear  and  join  in  the  commission,  or 


commission 
ers. 


CHANCERY  RULES.  xxxix 

object  to  the  persons  named  as  commissioners,  a  commission 
shall  be  issued  agreeably  to  the  prayer  of  the  petition. 

An  order  for  .a  comniission  will  not  stay  the  closings  of  tlic  proofs  until  the  commission  is 
executed  and  rc'.urncd,  nilliout  a  special  order  of  the  court.  JiarncU  vs.  Parduw,  1  Edui.  Ch. 
«.,  11. 

RULE  52. 

If  the  adverse  party  wishes  to  join  in  the  commission,  he  f^;;^.'Zy 
must,  at  the  time  of  presenting  the  petition,  furnish  the  names  Commission, 

1  ■  J     L  u    11  u     '""'  how. 

and  residence  of  the  witnesses  on  his  part,  and  they  shall  be 
inserted  in  the  commission.  If  he  is  not  satisfied  with  the 
commissioners  named  in  the  petition,  he  may  name  commis- 
sioners on  his  part;  and  the  register  to  whom  the  petition  is 
presented,  after  hearing  the  allegations  of  the  parties,  shall 
designate  a  suitable  person  or  persons,  to  execute  the  commis- 
sion, and  issue  the  same  accordingly;  but  any  of  the  commis- 
sioners named  in  the  commission,  may  execute  the  same,  in 
case  the  others  neglect  or  refuse  to  join  in  the  execution 
thereof,  or  they  are,  from  any  cause,  prevented. 

RULE  53. 

Witnesses  examined  out  of  the  state,  shall  be  examined  on  ouf"f''fc 
written,  direct  and  cross  interrogatories,  to  be  allowed  by  a  |^amine/oa 

,  ,  .      .  written  in- 

master,  and  annexed  to  the  commission.  terrogato- 

ries. 
Counsel  Iiuvc  a  right  to  lie  present  and  to  cross-examine  witnesses  \VIio  are  examined  under 
a  commission  out  of  the  state.     Steer  vs.  Steer,  Hopk.  Ch.  R.,  3C'2. 

RULE  54. 

If  it  shall  be  necessary  to  have  a  commission  to  take  the  ^^^/^omnTs". 
examination  of  witnesses  in  any  case  not  provided  for  in  the  ciai'ws"ee.''^ 
preceding  rules,  or  after  the  expiration  of  the  time  therein 
limited  for  making  an  application  to  the  register,  the  party 
may  present  a  petition  to  the  chancellor  for  that  purpose,  set- 
ting out  the  facts  which  entitle  him  to  a  special  commission; 
and  the  usual  notice  of  the  application  shall  be  given  to  the 
adverse  party. 


xl  CHANCERY  RULES. 

RULE  55. 

Order  for  the      Whcii  a  pavtv  wislics  to  examine  a  defendant  as  a  witness 


exanimalion 


a^witn^'ess^.''^  against  a  co-defendant,  or  against  the  complainant,  he  may,  at 
any  time  within  twenty  days  after  he  has  received  or  served 
a  notice  of  the  rule  to  produce  witnesses,  on  filing  an  affidavit 
that  such  defendant  is  a  material  witness,  and  is  not  interested 
in  a  matter  to  which  he  is  to  be  examined,  have  an  order  of 

Evidence      coursc,  for  the  examination  of  such  defendant  as  a  witness,  as 

may  lie  nb-  .  ,  .    ,     ,         .  .  ,  ,   .  ii    •       i 

jectcdtoat    to  any  matter  in  which  he  is  not  interested,  subject  to  all  just 

the  hearing.  "^  . 

exceptions.  And  such  defendant  shall  thereupon  be  examined 
to  such  matters,  in  the  same  manner  as  other  witnesses;  but 
the  adverse  party,  at  the  hearing,  may  object  to  the  competency 
of  his  testimony. 

W^here  ii  party  is  examined  as  a  witness  between  other  parties  in  a  suit,  he  is  examined  sub- 
ject to  .'dl  just  exceptions ;  and  if  he  is  interested  in  the  matters  to  which  he  is  examined,  the 
objccUon  may  be  taken  at  the  hearing  nltliough  it  has  not  ijefore  been  made.  Mohawk  hank 
vs.  Atwaier,  2  Paige  R.,  54. 

W'liere  the  comidalnant  examines  a  defendant  primarily  liable  for  the  debt  or  demand,  as  a 
witness  against  a  co-defendant,  he  cannot  liave  a  decree  against  eitl)er,  unless  tlie  defendant 
thus  examined  had  admitled  his  own  liability  by  his  answer,  or  by  suffering  the  bill  to  be  taken 
9a  confessed.    Bradley  vs.  Root,  5  Paige  R.,  632. 

RULE  56. 

Documenta-       Documentary  evidence,  which  is  neither  made  an  exhibit 

ry  evidence,  •' 

when  used,  beforc  the  commissioner,  or  set  out,  or  distinctly  referred  to  in 
the  pleadings,  shall  not  be  read  on  the  hearing,  unless  notice 
of  the  intention  to  use  it  at  the  hearing  is  given  to  the  adverse 
party,  at  least  ten  days  before  the  expiration  of  the  time  al- 

No proofs     lowed  to  producc  proofs,  and  no  deed  or  other  writing  shall  be 

taken  at  the  "^  "^  ° 

withim  s  e-  pi'oved  at  the  hearing,  except  on  an  order  previously  obtained, 
ciai  order,     j^f^gj.  (j^g  noticc  to  the  adversc  party. 

To  enable  a  party  to  read  documentary  evidence  at  the  liearing  under  the  provisions  of  this 
rule,  it  is  sufficient  if  notice  of  his  intention  to  do  so  is  given  to  the  adverse  party  more  than 
ten  days  previous  to  the  actual  entry  of  the  order  to  close  tiie  proofs.  Kellogg  vs.  Wood,  4 
Paige  R.,  578. 

Documentary  evidence  set  out  or  distinctly  referred  to  in  the  pleadings,  and  vphich  is  of  itself 
evidence  witliout  further  proof,  such  as  exemplilications  of  records,  deeds  duly  acknowledged, 
&c.,  may  be  read  at  the  hearing  without  notice  to  the  adverse  party,  or  any  order  previously 
obtained  for  that  purpose  although  not  made  an  exhibit  before  the  examiner.  Pardee  \s.De- 
Cala,  7,  Paige  R.  132. 

Wliere  the  assignee  of  a  morlgage  files  a  bill  to  foreclose,  setting  forth  the  mortgage  and  as- 
signment, he  may,  upon  the  notice  required  by  the  62d  rule,  to  the  opposite  party,  have  an  or- 


CHANCERY  RULES.  xli 

der  under  the  56th  rule,  to  prove  the  assignment  as  an  exhibit  at  the  hearing.  Jerome  vs.  Sey- 
mour,  Mss.,  in  chancery,  February  term,  lis41,/>er  Famsworth,  chancellor.  (See  aUo,  Cousequa 
vs.  Fanning,^  Johns.  Ch.  R.,  i;:!.) 

RULE  57. 

Process  of  subpoena  to  compel  the  attendance  of  witnesses  f^"^;;!**"^^.'" 
before  a  master  or  commissioner  shall  issue  of  course,  and  the  ;^;','Ss?^ 
time  and  place  of  attendance  shall  be  specified  in  the  writ;  and 
such  witnesses  may  be  punished  for  contempt,  if  they  fail  to 
attend  and  submit  to  an  examination.  But  no  witness  shall  be 
compelled  to  appear  before  the  master  or  commissioner,  more 
than  forty  miles  from  his  place  of  residence,  unless  by  special 
order  of  the  court. 

RULE  58. 

At  the  end  of  sixty  days  from  the  service  of,  or  receipt  ofo^^^«y°„j. 
notice,  of  examination  of  witnesses,  upon  filing  an  affidavit  of 
the  facts,  an  order  may  be  entered  of  course,  that  the  proofs 
be  closed. 

RULE  59. 

Within  ten  days  after  notice  of  the  order  to  close  the  proofs,  f."'"'""^ 
the  master  or  commissioner,  on  being  applied  to  for  that  pur-  [^n.-iS'f-" 
pose,  by  either  party,  shall  cause  the  depositions  and  exhibits,  J^onAs 
taken  or  produced  before  him,  to  be  returned  and  filed  with 
the  register.  And  he  shall  not  be  entitled  to  receive  pay  for 
taking  any  depositions,  or  making  any  exhibits,  which  are  not 
returned  and  filed  with  the  proper  officer,  within  ten  days  af- 
ter service  of  notice  of  such  order.  Neither  shall  a  copy  of 
any  deposition  or  exhibit  be  read  on  the  hearing,  unless  the  ori- 
ginal has  been  returned  and  filed  in  the  proper  office. 

RULE  60. 

An  order  to  enlarge  the  time  for  the  examination  of  witnes-  J^',J"^,'°^"" 
ses  maybe  granted,  on  sufficient  cause  shown,  without  notice  d"ccwit-'^°' 
to  the  adverse  party;  but  an  ex  parte  order  shall  not  be  gran-  ""^ 
ted  after  the  time  for  the  examination  of  witnesses  has  actual- 
ly expired,  nor  shall  a  second  order  be  granted  to  the  same 
party,  except  on  the  usual  notice  of  the  application  to  ihe  ad- 
verse party,  and  upon  such  terms  as  the  court  may  prescribe. 

Vol.  I.  6* 


tcr  the  lesli- 

y  is 
closed. 


xlii  CHANCERY  RULES. 

Where  an  order  to  produce  witnesses  has  been  extended  by  agreement  of  the  parties,  an  ex 
parte  order  further  lo  extend  the  time  is  regular  if  made  before  the  expiration  of  the  time  agreed 
on  by  the  stipulation  of  the  parties  ;  but  the  party  applying  for  such  further  extension  should 
state  the  fact  of  the  previous  extension  by  agreement  of  tlie  parties.  Fitck  vs.  Hazletine,  2 
Paige  R.,  416. 

"Where  one  party  has  obtained  an  order  to  extend  the  time  to  produce  witnesses,  the  adverse 
party  is  not  precluded  from  obtaining  an  ex  parte  order  for  extending  the  time  siQl  further. 
Osgood  vs.  Joslin,  3  Paige  R.,  193. 

By  the  English  practice  where  a  defendant  sets  down  the  cause  for  hearing,  he  is  not  bound 
to  serve  the  subpoena  to  hear  judgment,  on  his  co-defendants.  He  is  only  bound  to  serve  the 
complainant,  whose  duty  it  is  to  serve  the  other  defendants  before  the  cause  can  be  heard 
as  against  them.     Smith  vs.  Wells,  Mad.  and  Geld.  R.,  493. 

RULE  6L 

Either  party      After  the  proofs   are  closed,    either   party  may  notice  the 

may  notice  '■  i  ./  •/ 

Jfgg^j^g^^ '"°'' cause  for  hearing  at  the  next  or  some  subsequent  term.  It 
shall  not  be  necessary  in  any  case  to  obtain  an  order  to  set  a 
cause  down  for  hearing;  but  when  a  cause  is  in  readiness  for 
hearing,  on  plea,  or  demurrer,  bill  and  answer,  pleading  and 
proofs,  exceptions  to  a  master's  report,  or  on  the  equity  reser- 
ved, either  party  may  notice  the  same  for  hearing  and  have 
the  cause  entered  on  the  calendar  of  causes  for  the  term. 


Notices  of        All  notices  of  hsaring,  or  of  special  motions,  or  of  the  pre 

hearing  and 


RULE  62. 

or  of  speci 

of^moiions,  gcnting  of  petitions,  when  required,  shall  be  notices  of  at  least 
eight  days,  if  the  solicitor  of  the  adverse  party  resides  over 
one  hundred  miles  from  the  place  where  the  court  is  to  be  held; 
if  over  fifty,  and  not  exceeding  one  hundred,  six  days'  notice 
shall  be  given;  and  in  all  other  cases,  at  least  four  days.  And 
a  copy  of  the  petition,  affidavit,  or  certificate,  on  which  any 
special  application  is  founded,  shall  be  served  on  the  adverse 
party  the  same  length  of  time  previous  to  making  the  applica- 
tion to  the  court. 

When  a  party  has  appeared  in  the  cause,  he  is  entitled  to  notice  of  every  application  to  the 
court  on  which  the  final  order  is  sought,  where  he  has  an  interest,  to  appear  and  show  cause 
why  the  application  should  not  be  granted ;  orders  for  time  and  other  orders  of  a  similar  nature, 
esi  epte  I.     Is.  ar  i  vs.  Cozaux,  1  Paige  R.,    9. 

A  defendant  who  ha?  ajjpeared  by  his  solicitor,  is  entitled  to  notice  of  all  subsequent  proceed- 
ings in  a  cause  in  which  he  is  Interested.    Hart  vs.  Small,  4  Paige  it,  551. 


CHANCERY  RULES.  xliii 

RULE  63. 
When  a  cause  is  submitted  or  heard,  on  bill,  answer  and  re-  caseanaab- 

...  ^1)1-  1  r       -r      I  •,  hreviationof 

plicalion,  or  on  the  pleadings  and  proofs,  it  the  parties  do  not  pieaaings. 
agree  upon  a  case,  to  be  signed   by  them,  containing,  with  all 
requisite  brevity,  a  statement  of  the  pleadings  and  proofs,  the 
complainant  shall  furnish  the  court  with  a  case,  staling  the  time 
of  filing  the  bill,  and  of  the  answers  and  other  pleadings   re- 
spectively, the  names  of  the  original  parties  in  full,  the  change 
of  parties,  if  any  has  taken  place  pending  the  suit,  and  a  very 
brief  history  of  the  proceedings  in  the  cause;  and  containing 
an  abbreviation  cf  the  pleadings,  not  exceeding  one-sixth  of 
the  number  of  folios  contained  in  the  original  pleadings,  respec-    - 
lively. 

RULE  64. 

In  making  up  the  calendar,  causes  to  be  heard  on  bills  taken  caiendarand 

'-'      '■  '  Ihe  order  in 

as  confessed,  shall  have  a  preference,  and  shall  be  entered  ac-  Tes  al'e'^o  be 

cording  to  priority,  from  the  date  of  the  order  to  take  the  bill  ^'^^^' 

as  confessed.     Pleas  and  demurrers  shall  constitute  the  second 

class  of  causes,  and  have  priority  from  the  time  when  the  plea 

or  demurrer  was  filed.     Causes  to  be  heard  on  bill  and  an   miiTnd°"n- 

hi  I  1  1  •     1      1  1  11  swer  10  con- 

all  occupy  the  third  place  on  the  calendar,  and  have  stimte  the 

'  tliird  class. 

priority  from  the  time  when  the  answer  was  put  in.     Those 
which  are  to  bo  heard  on  the  pleadings,  or  on  pl.:adip^:s  and 
proofs,  shall  form  the  fourth  class,  and  have  priority  from  the 
lime  when   the  replication  was  filed.     Causes  to  be  heard  on 
exceptions,  or  upon  the  equity  reserved  in  a  decretal  order, 
shall  be  placed  in  the  class  to  which  they  belonged  before  the 
decretal  order  or  reference,  and  according  to  their  priority  as 
it  then  existed;  and  causes  for  rehearing  shall  be  arranged  in 
the  same  manner.     But  the  court,  in  the  hearing  of  calendar 
causes,  may,  in  its  discretion,  give  a  preference  to  any  parti- 
cular cause,  or  description  of  causes,  over  others  on  the  calen- 
dar.    And  mortgage  causes  of  the  fourth  class,  shall  be  entitled 
to  a  preference  over  any  other  causes  of  the  same  class;  un- 
less the  defendant,  before  the  cause  is  heard,  shall  file  with  the 
register,  or  assistant  register,  at  the  place  where  the  court  is 


xiiv  CHANCERY  RULES. 

held,  an  affidavit  that  he  has  a  good  and  meritorious  defence, 
and  that  his  answer  was  not  put  in  for  the  purpose  of  delay; 
the  filing  of  which  affidavit  he  shall  have  noted  on  the  calen- 
dar. 

RULE  65. 

Causes  shall      Causcs  shall  be  noticed  for  hearing  for  the  first  day  of  term, 
for"the  first    or  for  as  early  a  day  in  term  as  practicable.     The  notice  to  the 

day  of  term.  • 

register  specifying  the  class  to  which  the  caxise  belongs,  and 
the  time  from  which  it  is  entitled  to  priority,  shall  be  deliver- 
ed to  the  register,  who  is  to  make  the  calendar  four  days  pre- 
vious to  the  commencement  of  the  term.  But  if  the  cause  is 
not  in  readiness  for  hearing  in  time  to  notice  it  for  the  first  day 
in  term,  it  may  be  placed  at  the  foot  of  the  calendar;  and  if 
the  bill  has  been  taken  as  confessed,  may  be  heard  out  of  its 
regular  order. 

RULE  66. 

Papers  to  be      When  E  causc  is  heard  or  submitted  on  plea  or  demurrer, 

furnished  .    . 

upon  the      QY  qu  bill  and  answer,  except  in  mortgage  or  partition  causes, 

hearing.  '  '  o    o  i 

where  the  complainant's  rights  are  not  contested,  the  court 
shall  be  furnished  with  copies  of  the  pleadings,  and  an  abbre- 
viation thereof,  not  exceeding  one-sixth  of  the  number  of  fo- 
lios contained  in  the  originals.  If  it  is  heard  on  bill,  answer 
and  rephcation,  or  on  pleadings  and  proofs  in  addition  to  the 
case  required  by  the  sixty-fourth  rule,  the  court  shall  be  fur- 
nished with  copies  of  the  pleadings  and  of  the  depositions,  if 
onarehear-  any,  and  with  short  abstracts  of  the  exhibits.  On  a  rehear- 
'"^"  ing,  a  copy  of  the  decree  or  order  reheard,  shall  be  furnished, 

and  copies  of  the  pleadings,  abstracts,  case,  depositions,  &.c., 
on  which  the  same  was  founded.  Upon  exceptions  to  a  mas- 
ter's report,  copies  of  the  order  of  reference,  report  and  ex- 
ceptions, and  of  such  part  of  the  evidence  before  the  master, 
and  of  the  pleadings,  as  are  material  for  the  decision  of  the 
exceptions,  shall  be  furnished.  And  in  all  cases,  the  necessa- 
ry papers  shall  be  delivered  to  the  court  when  the  hearing  of 
the  cause  shall  commence. 


I)y  whom 
crs  are 
io  lie  fur- 


CHANCERY  RULES.  xlv 

RULE  67. 

If  the  cause  is  heard  or  submitted  on  a  plea  or  demurrer,  or  ^y^ 
on  exceptions  to  a  master's  report,  or  on  a  rehearing,  the  ne-  '„°ihed 
cessary  papers  shall  be  furnished  by  the  party  pleading,  de- 
murring or  excepting,  or  who  obtained  the  rehearing.  In  all 
other  cases  the  papers  shall  be  furnished  by  the  complainant; 
except  that  on  an  original  hearing  upon  pleadings  and  proofs, 
each  party  shall  furnish  copies  of  the  testimony  and  abstracts 
of  the  exhibits  on  his  part  only.  And  each  party  shall  deliver 
to  the  court  and  to  the  adverse  party,  a  copy  of  the  points  on 
which  he  relies;  and  may  also  deliver  to  the  court  and  to^^tho 
adverse  party,  a  draft  of  the  minutes  of  the  decree  to  which 
he  conceives  himself  entitled. 

RULE  68. 

The  solicitor  or  other  officer  of  the  court,  who  draws  any  £'«^f^"^-;',^_ 
pleading,  deposition  or  report,  or  enters  any  decree,  shall  dis-  feSto'ue 

linctly  number  and  mark  each  folio  in  the  margin  thereof;  and  ami'n'far'kea 

1111  ^y  i''6  folio. 

all  copies,  either  for  the  parties  or  for  the  court,  shall  be  num- 
bered or  marked  in  the  margin,  so  as  to  conform  to  the  origi- 
nal draft  or  entry  and  to  each  other;  and  no  allowance  shall 
be  made  on  the  taxation  of  costs  for  copies  not  numbered  and 
marked  according  to  this  rule.  And  all  bills,  answers  and 
other  proceedings,  and  copies  thereof,  shall  be  fairly  and  legi- 
bly written;  and  if  not  so  written,  the  register  or  assistant  re- 
gister shall  not  file  such  as  may  be  offered  to  them  for  that 
purpose;  and  in  the  entitling  and  endorsement  of  papers  by  ei- 
ther party,  the  complainant's  name  shall  be  placed  first. 

RULE  69. 

If  the  cause  is  noticed  for  hearing  on  the  part  of  the  de-  Default  at 
fendant,  and  the  complainant  does  not  appear  to  agree  on  his 
part,  or  does  not  furnish  the  necessary  papers,  agreeably  to 
the  preceding  rules,  the  bill  may  be  dismissed,  with  costs.  If 
noticed  on  the  part  of  the  complainant,  and  the  defendant  does 
not  appear  at  the  hearing,  and  furnish  the  necessary  papers  on 
his  part,  the  complainant  may  have  such  decree  as  he  is  enti- 


xlvi  CHANCERY  RULES. 

tied  to  by  the  defendant's  default,  according  to  the  usual  course 
and  practice  of  the  court. 

RULE  70. 

The  manner      All  submissions  shall  bc  in  writing,  signed  by  the  necessary 

ofs-jbmiUing  _  .     .  i      i      n    i  i    i-  J    * 

cases.  parties  or  their  solicitors  or  counsel,  and  shall  be  aehverea  to 

the  register  or  assistant  register  where  the  court  is  held,  with 
the  necessary  copies  and  papers.  On  special  motions  and  pe- 
titions, as  well  as  in  calendar  causes,  he  shall  mark  the  pa- 
pers and  note  them  in  his  minutes,  as  on  a  hearing;  and  he 
shall  not  enter  the  submission  until  all  the  necessary  copies 
and  papers  are  furnished,  as  required  by  the  rules  of  the  court. 

RULE  71. 

cntt7ed  wuh  ^11  ordcrs  and  decrees,  made  by  the  chancellor  on  the  days 
the regisier.  fQj.  j^g^j-jj^g  gpgcia]  motions  and  petitions,  established  in  rule 
first,  unless  otherwise  specially  directed,  may  be  entered  with 
the  register  of  the  proper  circuit;  but  the  caption  of  orders 
and  decrees  shall  always  state  truly  the  place  where  the  court 
was  held  when  the  same  were  made. 

Neither  party  can  have  any  benefit  from  a  decision  of  the  court,  until  the  order  upon  such 
decision  is  drawn  up  and  perfected.  And  where  it  is  material  to  either  party,  the  caption  or 
date  of  the  order  shouM  be  made  to  correspond  with  the  true  time  of  the  entry  of  such  order. 
Whitney  vs.  Belden,  4  Paige  R.,  140. 

RULE  72. 
Regulations       When  a  matter  is  referred  to  a  master,  to  examine  and  re- 

of  tlie  pro-  ' 

u?emaster"s  po^'t  tliercon,  on  bringing  the  decree  or  order  into  his  office,  he 
shall  assign  a  day  and  place  for  hearing  the  parties,  and  give 
to  the  party  bringing  in  such  decree  or  order,  a  summons  for 
the  adverse  party  to  attend  at  the  day  and  place  so  appointed. 

?i'™of  mT"  'I'^^®  summons  shall  be  served  on  the  adverse  party  or  his  soli- 
citor, such  time,  previous  to  the  day  appointed  for  hearing,  as 
the  master  may  deem  reasonable  and  direct,  taking  into  con- 
sideration the  nature  of  the  matter  to  be  examined,  and  the 
residence  of  the  parties.  But  the  time  of  service,  unless  oth- 
erwise ordered  by  the  court,  shall  not  be  less  than  two  days, 
when  the  solicitor  of  the  adverse  party  resides  in  the  city  or 
town  where  the  hearing  is  to  take  place;  and  not  less  than 


Vlt 

summons 


CHANCERY  RULES.  xlvii 

four  days,  when  he  resides  elsewhere,  not  exceeding  fifty 
miles  from  the  place  of  hearing;  not  less  than  six  days,  if  over 
fifty,  and  not  exceeding  one  hundred  miles;  and  not  less  than 
eight  days,  when  he  resides  more  than  one  hundred  miles  from 
the  place  of  hearing. 

The  adverse  party,  upon  the  taxation  of  costs,  is  entitled  to  notice  of  the  taxation,  for  the 
same  length  of  time  as  is  prescribed  by  this  rule  as  the  shortest  time  which  is  to  be  allowetl  for 
the  service  of  a  summons  upon  a  reference ;  and  a  taxation  of  costs  without  such  notice  is  irre- 
gular, and  may  be  set  aside.     Hoffman  vs.  Skinner,  5  Paige  R.,  520 ;   (See  also  rule  118.J 

The  summons  should  Le  properly  under-written,  or  the  nature  of  the  reference  to  be  procee- 
ded in,  or  the  object  of  the  attendance  should  be  stated  in  the  body  "f  the  .■jiimmons.  Manhattan 
CO.  vs.  Eccrston,  4  Paige  R..  276. 

A  personal  service  of  a  summons  upon  the  party  himself,  to  attend  before  the  master,  and  to 
produce  or  execute  papers,  or  to  be  examined  under  a  decree  or  order  of  Uie  court,  is  not  neces- 
sary for  the  purpose  of  bringing  such  party  into  contempt  for  disobeying  the  summons;  but  a 
service  upon'the  solicitor  alone  is  sufficient.     Rlerritt  vs.  Annan,  7  Paige  R.,  151. 

Where  a  parly  has  appeared  by  a  solicitor,  the  service  of  an  order  evca  for  the  purpose  of 
bringing  such  party  Into  con.eiiipt  for  not  obeying  the  same,  is  properly  served  on  the  solicitor. 
Staffordvs.  Brown, H  Paige  R.,  360. 

Where  there  has  been  one  reference  on  exceptions  to  an  answer,  if  a  second  or  third  answer 
is  referred  for  insulficiency  on  the  old  exceptions,  it  should  be  referred  to  the  same  master,  if  he 
is  still  in  office  and  is  legally  competent  to  act  in  the  case.    Legett  vs.  Dubois,  3  Paige  R.,  477. 

RULE  73. 

If  the  party  who  is  entitled  to  prosecute  such  decree,  orPa^yenu-^^ 
order  of  reference,  does  not  procure  and  serve  such  summons  lfrcfe"Jx'!ci 
within  thirty  days  after  the  decree  or  order  is  entered,  any  Ihiny  dlys!"* 
other  party  or  person    interested  in  the  matter  of  reference, 
shall  be  at  liberty  to  apply  to  the  court,  by  motion  or  petition, 
to  expedite  the  prosecution  of  the  decree  or  order;  and  after 
the  proceedings  have  been  commenced,   by  the  service  of  a 
summons  to  attend  before  the  master,  if  the  party  entitled  to 
prosecute   such  decree  or  order,   does  not  proceed  with  due 
dihgence,  the  master  shall  be  at  liberty,  upon  the  application 
of  any  other  person  interested,  either  as  a  party  to  the  suit,  or 
as  coming  in  to  prove  his  debt,  or  establish  a  claim  under  the 
decree  or  order,  to  commit  to  him  the  prosecution  of  the  re- 
ference. 

The  master's  decision  under  this  rule  is  not  conclusive-,  and  if  he  refuses  the  application  to 
commit  the  prosecution  of  the  reference  to  another  party,  the  court  may  commit  the  prosecution 
to  such  party,  upon  a  proper  application  for  that  purpose.     IVt/att  vs.  Sadler,  5  Simons'  R.,  450. 

The  court  may  commit  the  prosecution  to  another  party,  allJiough  the  suit  has  abated,  if  the 
party  who  is  entitled  to  prosecute  the  order  of  reference,  neglects  to  revive  the  suit.  Cook  vs. 
£eHi)n,  i  Ruti.  JR.,  283. 


for 

r 

ings 


xlviii  CHANCERY  RULES. 

RULE  74. 
Master  to  At  the  time   and  place  appointed  in  the  summons,  for  the 

regulate  pro-  i  i  i 

n^liiclfme"'  hearing  of  the  parties,  the  master  shall  proceed  to  regulate,  as 
aiproce'ed-'  far  as  may  be,  the  manner  of  its  execution;  as,  for  example, 
to  state  what  parties  are  entitled  to  attend  future  proceedings, 
to  direct  the  necessary  notices,  and  to  point  out  which  of  the 
several  proceedings  may  properly  be  going  on,  pari  passu;  and 
as  to  what  particular  matters,  interrogatories  for  the  examina-. 
tion  of  the  parties  appear  to  be  necessary;  and  whether  the 
matters  requiring  evidence  shall  be  proved  by  affidavit  or  by 
examination  of  witnesses;  and  if  the  master  shall  think  it  ex- 
pedient so  to  do,  he  may  then,  or  upon  any  subsequent  attend- 
ance, and  from  time  to  time,  as  circumstances  may  require, 
fix  the  time  within  or  at  which  any  proceedings  before   him 

Masters  may  ghall   \jq  haj.  Q^d  hc  mayprocced  de  die  in  diem,  or  by  ad- 
proceed  (le  '  •'    ^  1  J 

die  in  diem,  joummcnt  from  time  to  time,  as  he  may  think  proper. 

Upon  the  return  of  the  first  summons,  the  master  should  regulate  the  manner  of  executing 
the  reference,  and  the  several  steps  to  be  taken  by  the  parties  so  far  as  it  can  then  be  conven- 
iently done ;  and  at  any  subsequent  allendanee  before  him,  he  should  give  such  further  directions 
in  relation  to  the  proceedings  as  may  have  become  necessary  in  the  progress  of  the  reference. 
Story  vs.  Brown,  4  Paige  R.,  112. 

The  master  cannot  proceed  upon  affidavits  upon  an  inquiry  before  Iiim,  in  an  adversary  pro- 
ceeding, without  the  consent  of  all  the  parties  interested  therein.  Rowley  vs.  Adams,  1  Myl.  if 
Keen' a  R,  54S. 

RULE  75. 

Masters  may      Where,  by  any  decree  or  order  of  the  court,  books,  papers 

direct  as  to  ..  iiiz-i 

the  books     or  writings,  are  directed  to  be  produced  belore  the  master,  for 

and  papers  *  • 

tobeprodu-  the  purposes  of  such  decree  or  order,  it  shall  be  in  the  discre- 
tion of  the  master  to  determine  what  books,  papers  or  writings 
are  to  be  produced,  and  when  and  for  how  long  they  are  to  be 
left  in  his  office;  or,  in  case  he  should  not  deem  it  necessary 
that  they  should  be  left  or  deposited  in  his  office,  then  he  may 
give  directions  for  the  inspection  thereof  by  the  parties  requi- 
ring the  same,  at  such  time  and  in  such  manner  as  he  shall 
deem  expedient. 

Where  a  party  produces  books  under  an  order  of  the  court,  for  the  inspection  of  the  adverse 
party,  those  parts  may  be  sealed  up  which  do  not  relate  to  the  subject  of  the  litigation  ;  and  it  is 
a  contempt  of  the  court  fcr  the  adverse  party  to  break  open  the  pjirts  thus  sealed  up.  Dios  ve. 
Jfer/e,  2  Paige  R.,  494. 


CHANCERY  RULES.  xlix 

The  master  is  to  exercise  a  discretion  in  determining  what  books  and  papers  arc  necessary  to 
be  produced,  :iIthoiif.'h  Ihe  liingunge  (jf  the  decree  is  general.  Ihal  the  p.-irlies  produce  all  books 
and  papers,  &c.  Fariahea  vf  Llantrisant,  1  Russ.  6f  Myl.  iJ,.25;  JJennd  vs.  Vuitn,  Mad.  fy  Gold 
R.,  340.  For  a  collection  of  fcin^'lish  ca.ses  as  to  the  (iroduciion  of  books  and  papers,  {see  note 
to  order  60,  in  Cook's  new  Orders,  p.  28.) 

RULE  76. 

Where  some,  or  one,  but  not  all  of  the  parties  do  attend  the  if  some  of 

the  parlies 

master,  at  the  time  and  place  appointed,  the  master  shall  be  at  '"-elect to 

I  '  •  '  at' end  ihe 

liberty  to  proceed  ev  parte,  if  he  think.s  it  expedient  so  to  do,  may "roceed 
considering  the  nature  of  the  case;  and  if  he  has  proceeded  ^^'"'"^' 
ex  parte,  such  proceeding  shall  not  in  any  manner  be  reviewed 
by  him,  unless,  upon  special  application  to  him  for  that  pur- 
pose, by  the  party  who  was  absent,  the  master  shall  be  satisfi- 
ed such  party  was  not  guilty  of  wilful  delay  or  negligence,  and 
then  only  upon  payment  of  all  costs  occasioned  by  his  non- 
attendance;  and  such  costs  to  be  certified  by  the  muster,  at 
the  time,  and  paid  by  the  party  or  his  solicitor,  before  he  shall 
be  permitted  to  proceed  on  the  warrant  to  review;  and  every 
summons  to  attend  before  a  master  shall  be  considered  pei-emp- 
tory. 

RULE  77. 
The   master  shall  be  at  liberty  to  examine  any  witness  or  The  master 

may  take  les- 

partv,  or  any  creditor  or  other  person  coming  in  to  claim  be-  «''P""''f 
fore  him,  either  upon  written  interrogatories,  or  viva  voce,  or  ,''o.'"tor',e"'o r 
in  both  modes,  as  the  nature  of  the  case  may  appear  to  him  to  hudl'""^'" 
require;  the  examination  or  evidence  being  taken  down  at  the 
t'mj  by  the  masti  r,  or  by  his  clerk  in  his  presence,  and  pre- 
served, i.)  order  that  the  same  may  be  used  by  the  court,  if 
necessary. 

Where  a  party  is  examined  before  a  master  in  relation  to  his  own  rislits  or  llrbiliiics,  he 
cannot  he  cross-examined  by  his  own  counsel,  or  frivc  evidence  in  his  o\'n  favor,  any  fur;her 
than  Ids  answers  are  responsive  to  the  interrogatories  put  to  biui  by  the  adverse  party.  Benson 
vs.  Le  Roy,  1  Paige  R.,  122. 

A  creditor  coming  in  to  claim  before  a  masler,  under  a  dci-rce  for  the  benefit  of  creditors, 
must  present  the  particulars  of  his  claim  in  writing,  supported  by  an  affidavi:  that  the  amount 
claimed  is  justly  due,  and  that  neither  he,  nor  any  other  |.erson  for  his  use,  has  received  the 
amount  claimed,  or  any  part  thereof,  or  any  security  or  satisfaction  therefor.  Morns  vs.  Moie- 
att,  4  Paige  R.,  14'J. 

Vol.  L  7* 


iscie- 
tion. 


1  CHANCERY  RULES. 

RULE  78. 

ma'^exa-  ^^  ^  pai'ty  wishes  to  complain  of  any  matter  introduced  into 

M^ep'tedlo"  any  state  of  facts,  affidavit,  or  otiier  proceeding  before  the 
master,  on  the  ground  that  it  is  scandalous  or  impertinent,  or 
that  any  examination  of  a  party  before  him  is  insufficient,  such 
party  shall  bo  at  liberty  to  file  exceptions  thereto  with  the 
master;  and  the  master  shnll  have  authority  to  expunge  any 
such  matter  which  he  shall  find  to  bo  «pandalous  or  imperti- 
if  a  master    i-jent.     And  vvherc  the  matter  is  excepted  to.  as  scandalous  or 

disiillowsex-  ' 

decisro"n' '"'  impertinent,  if  the  master  disallows  the  exceptions,  his  decision 
as"io  I'he'^ex-  thercou  sluill  be  final  as  to  the  exceptions  which  are  disallow- 
cepions.      ^^^  ^^^  ^j^.^  ^j^^jj  ^^^^  preclude  the  party  from  insisting  upon 

the  impertinence  at  the  hearing  of  the  cause,  or  upon  any  sub- 
sequent proceeding  founded  on  the  master's  report  upon  the 
reference,  or  upon   the   taxation  of  the  general  costs   of  the 
Mateririity    causc,  or  of  the  reference.     And  in  deciding  on  the  sufficiency 

of  tlie  niaiter  '  . 

inioVJ'ifs'ide-  °''  insufficiency  of  the  examination  of  a  party,  or  of  an  answer 

ration.         ^         l^jji    ^j     Piaster  shall  alwavs  take  into  consideration  the 

relevancy  or  materiality  of  the  statement  or  question  referred 

Parties  to  be  to  in  the  cxception.     On  exceptions  to  the  master's  report,  or 

confined  to  '  *  _  ' 

oiijections     ^Q  jjjg  certificate  of  the  sufficiency  or  insufficiency  of  an  exa- 

t;iken  lirfore  -^  •' 

the  master.    j-j-,ij-mtion,  the  parties  shiU  be  confined  to  the  objections  taken 
before  the  master. 

The  proceedings  upon  a  master's  certificate  as  to  the  sufficiency  of  an  examination  of  a  party, 
are  substantially  the  same  as  upon  a  report  upon  exceptions  to  an  answer  for  insufficiency. 
Case  vs.  Abeet,  1  Paige  R.,  630. 

RULE  79. 

Accountsbe-      All  parties  accounting  before  a  master,  shall  bring  in  their 

fore  the  mas-  r  cd  a 

tertohein     accounts  in  the  form  of  debtor  and  creditor:  and  any  of  the 

the  form  of  ^  j 

creditor.'"'     Other  parties  who  shall  not   be  satisfied  with  the  accounts    so 

brought  in.  shall  be  at  liberty  to  examine  the  accounting  party 

aurnv  hil"-^  upon  interrogp.tories,  as  the  master  may  direct.     On  any  refe- 

any  special"^  rcucc  to  take  or  State  an  account,  the  master  shall  be  at  liber- 

dirccuous.  .  I      1 1    I         •  1  •       1   1  •    1 

ty  to  allow  mterest  as  shall  l)e  just  and  equitable,  without  any 

special  directions  for  that  purpose,  unless  a  contrary  direction 

cb^^cs!&t,  '^^   contained  in  the  order  of  reference.     And  every  charge, 

by  oat^h"''^^'*  discharge,  or  slate  of  facts,  brought  in  before  a  master,  shall 


CHANCERY  RULES.  li 

be  verified,  b\'  oath,  as  true,  either  positively,  or  upon  infor- 
mation and  belief. 

A  party  eianiiiicd  before  a  master  in  relation  to  his  accounts  cannot  give  testimony  in  his 
own  favor,  any  further  than  his  answers  are  fairly  responsive  to  the  interrogatories  of  the 
adverse  party.     Benson  vs.  Le  Roy,  1  P.iige  R.,  122. 

Where  a  party  is  required  to  bring  in  his  accouril  before  the  master  under  this  rule,  he  must 
bring  In  his  whole  account  and  for  the  whole  period  for  which  he  is  accountable.  It  must  also 
be  verified  by  llie  usual  affidavit,  that  the  account,  including  both  debts  and  credits,  is  correct, 
and  that  the  party  accounting  docs  not  know  of  any  error  or  omission  therein  to  the  prejudice 
of  any  of  the  other  parties.     Story  vs.  Rroicn,  4  Paig-e  R.,  112. 

RULE  80. 

In  all  matters  referred  to  a  master,  he  shall  be  at  liberty,  -'^ma'-ej; 

'  '    ^'  V  '  may  make 

upon  the  application  of  any  party  interested,  to  make  a  sepa-  poru''''^  ''^' 
rate  report  or  reports,  from  time  to  time,  as  he  shall  deem  ex- 
pedient; the  costs  of  such  separate  reports  to  be  in  the  discre- 
tion of  the  court.  And  where  the  master  shall  make  a  sepa- 
rate report  of  debts  or  legacies,  he  shall  be  at  liberty  to  make 
such  certificate  as  he  thinks  fit,  with  respect  to  the  state  of  as- 
sets and  any  person  interested  shall  thereupon  be  at  liberty 
to  apply  to  the  court  as  he  shall  be  advised. 

Wli!re  the  decree  among  other  things  directs  the  master  to  appoint  a  trustee  or  receiver,  his 
certificate  of  t1ie  appointment  is  in  the  nature  of  a  separate  report.  Harris  vs.  Kemble,  4  Russ 
it,  474. 

Where  a  party  to  the  suit  objects  to  a  separate  report,  lie  may  file  his  exceptions  to  it  in  the 
same  manner  as  to  a  genera!  report  •,  and  lie  is  not  obliged  to  apply  to  the  court  for  leave  to  ex- 
cept.   Drever  vs.  MaudetUy,  7  Simons  i?.,  240. 

RULE  8L 
When  the  master  has  prepared  the  draft  of  his  report,  he '^^"""^f  °f 

'        '  r         7  settling  re- 

shall  deliver  copies  thereof  to  such  of  the  parties  as  apply  for  ^°"' 
the  same,  and  shall  assign  a  time  and  place  for  the  parties  to 
bring  in  objections,  and  for  settling  the  draft  of  the  report,  and 
no  summons  to  see  the  draft  of  the  report,  and  to  take  copies 
thereof,  shall  be  necessary.     On  the  day  assigned,  or  on  such 
other  day  as  may  then  be  assigned  by  the  master  for  that  pur- 
pose, if  objections  are  filed  by  either  party,  he  may  proceed  to 
hear  the  parties  on  such  objections;  and  the  master  shall  settle 
and  sign  his  report  and  cause  it  to  be  filed  in  the  proper  ofiice,  Maser-sre- 
within  twenty  days  after  the  argument  on  such  objections  is  settled" and 
closed.     If  no  objections  are  made  to  the  draft,  the   master  days 


lii  CHANCERY  RULES. 

shall  sign  his  report  and  file  it  in  the  proper  office  within  ten 
days  after  the  time  assigned  for  bringing  in  objections. 

On  a  reference  of  exceptions  to  an  answer,  the  master  furnishes  no  draft  of  his  report,  but 
the  whole  matter  is  ;irgued  before  him  in  the  first  instance.  And  if  either  party  neglects  to  ap- 
pear and  argue  the  exceptions,  such  party  cmnot,  afterwards  hring  them  before  the  court, 
by  excepting  to  the  report  of  the  master.     Byington  vs.  Wood,  1  Paige  i?.,143. 

Where  it  is  referred  to  a  mas  er  to  examine  and  report  as  to  a  particular  fact,  it  is  his  duty  to 
draw  the  conclusion  of  fact  from  the  evidence  before  him  and  report  such  conclusion  only  as 
in  a  special  verdict ;  and  it  is  irregular  for  him  to  set  forth  the  evidence  in  his  report  unless  he 
is  directed  to  do  so  by  the  order  of  reference.    In  Re.  Hemiup,  3  Paige  R.,  305. 

RULE  82. 
ordertocon       After  the  rcpoi't  is  filed,  either  party  may  have  an  order  of 

firm  report.  •  '  i         j  j 

course,  to  confirm  the  same,  unless  cause  to  the  contrary  there- 
of be  shown  in  eight  days;  and  if  no  exceptions  are  filed  and 
served  within  that  time,  the  order  shall  become  absolute  of 
course,  without  notice  or  further  order;  or  either  party  may 
file  exceptions,  and  have  an  order  of  course,  to  confirm  the 
report,  so  far  as  the  same  is  not  excepted  to,  and  with  the  like 
effect. 

Irregularities  in  the  proceedings  in  the  masters  off  ce  are  not  the  proper  subjects  of  exception 
to  the  masters  report;  but  the  party  aggrieved  thereby  should  apply  to  the  court  to  correct  the 
alledged  irregularity,  or  to  set  aside  the  report,  or  to  refer  the  report  back  to  the  master  with 
the  directions  to  bim  to  have  the  irregularity  corrected.     Tyler ys.  Simmons,  6  Paige  R.,  127. 

RULE  83. 

No  process        No  proccss  shall  be  issued,  or  othvr  proceeding  had,  on  any 

on  decree  '  '  i  a  ^  j 

ment.^^""^"''  ^^^^  dccrcc.  Until  the  same  is  duly  enrolled.  And  such  pro- 
proce^s  to  ccss.  unlcss  otherw'sc  specially  directed  by  the  court,  shall  be 
fronriheof-  scalcd  and  issued   by  the  register  or  assistant  register,  who 

fice  where  '  i     -r    •       i 

the  de-re- ;   shall  not  suffcr  any  process  to  pass  his  seal,  if  it  does  not  ap- 

enroUed.  *    r  i  r 

pear  to  be  duly  warranted.  If  a  master  is  directed  to  sell  real 
estate  under  such  decree,  he  may  give  the  requisite  notice  of 
sale  previous  to  enrolment;  but  to  protect  the  title  of  the  pur- 
chaser, the  party  for  whose  benefit  the  sale  is  made,  shall  cause 
the  decree  to  be  enroibd,  and  produce  a  certificate  thereof, 
Decree  to  be  beforc  any  conveyance  shall  be  executed  by  the  master.     And 

enrolled    le-  .'  -^  •' 

cuiToilof^^  where  any  previous  decree  or  decretal  order  disposes  of  any 
conveyance.  ^^^^  ^^  ^^^  merits  of  the  cause,  or  is  necessary  to  explain  the 


CHANCERY  RULES.  I'ii 

final  decree,  it  shall  either  be  recited  therein,  or  enrolled  there- 
with, as  a  part  of  the  final  decree  in  the  cause. 

Where  the  decree  is  final  as  to  any  branch  of  the  cause,  or  as  to  any  of  tlio  parlies,  it  must 
be  enrolled  before  a  deed  can  be  executed,  on  a  sale  under  that  part  of  the  decree,  and  before  an 
execution  can  be  issued  to  compel  a  compliance  with  such  decree.  Mint/iorne  vs.  Tompkins, 'Z 
Paige  H,  10'2. 

The  solicitor  has  no  right  to  alter  an  execution  afier  it  has  been  issued  by  the  reeister.  Nei- 
ther has  the  register  any  right  to  issue  process  in  blank  to  he  filled  up  by  ihc  solicitor  except 
process  to  appear  and  answer,  or  process  to  compel  the  attendance  of  witnesses.  JVeicitt  vs. 
Toicnsend,  5  Paige  R.,  80. 

RULE  84. 
A  petition  for  a  rehearing  shall  state  the  special  matter  or  ^[,=j,'j;'[;'p°;r^r 
cause,  on  which  such  rehearing  is  applied  for,  and  the  particu-  •'  "'"'"""e- 
!ar  points  in  which  the  decree  or  order  is  alledged  to  be  erro- 
neous; and  the  facts,  if  they  do  not  appear  from  the  records  of 
oi  the  court,  shall  be  verified  by  affidavit  of  the  party,  or  of 
some  other  person.      It  shall  also  be  accompanied  by  the  ccrti-  certificate  of 

r  I  •/  ,„.Q   counsel 

ficate  of  two  counsel,  that  they  have  examined  the  case,  and  required. 
that  in  their  opinion  the  decree  or  order  is  erroneous  in  the 
particulars  mentioned  in  the  petition.     And  a  copy  of  the  peti- 
tion, with  the   usual   notice  of  presenting  the  same,  shall  be 
served  on   the  adverse  party,  but  the  rehearing  shall  not  be 

considered  as  a  matter  of  course  in  any  case.     And  if  a  re-  Noticeof  ap- 
plication gi- 
hearins  is   not  applied  for  within  thirty  days  after  the  decree  vemoad- 

o  t  r  J  ^  verse  party. 

or  order  complained  of,  is  entered,  the  court  may  require  pay- 
ment of  the  costs  incurred  by  the  adverse  party,  by  any  pro- 
ceedings under  the  decree  or  order,  as  a  condition  of  granting 
the  rehearing. 

A  rehearing  is  not  a  matter  of  course;  but  the  granting  or  refusing  thereof,  rests  in  the  dis- 
cretion of  the  court.     Land  vs.  Wickham,  1  Paige  R.,  250. 

Where  upon  the  hearing  of  a  cause  the  ciunsel  for  the  defendant  after  hearing  tlie  opening 
argument  of  the  complainan  's  counsel  abandoned  the  defence  as  hopeless,  the  court  refused  to 
grant  a  rehearing  upon  the  ordinary  certificate  of  counsel.  De  Carters  vs.  La  Fargc,  1  Paige 
R.,  574. 

RULE  85. 

Where  a  party  is  entitled  to  an  order  to  stay  proceedings,  ^.^^.^^/J^ 
or  for  temporary  relief  until  he  has  time  to  give  regular  no-  [.^^'^^''^JgfVn. 
tice  of  a  motion,  or  of  presenting  a  petition  for  a  hearing,  or  *^  ' 
for  any  other  purpose,  he  may  make  an  ex  parte  application 


liv 


CHANCERY  RULES. 


Papers  to  lie 
serve  I  on 
adverse 
party. 


Deposit  re- 
qiiireit  on  a 
rehearing. 


Agreements 
as  to  the  pro- 
ceedings in  a 
cause  to  Le  in 
writin". 


to  the  court,  for  an  order  that  the  adverse  party  show  cause 
why  the  motion,  or  the  prayer  of  the  petition,  should  not  be 
granted,  and  to  stay  proceedings,  or  for  other  temporary  relief 
in  the  mean  time.  And  the  adverse  party  shall  be  served  with 
a  copy  of  the  order,  and  of  the  petition,  affidavit,  or  certificate 
on  which  it  is  founded,  the  same  length  of  time,  before  the 
day  for  showing  cause,  as  is  required  in  the  ordinary  case  of 
special  motions,  unless  the  court  shall  specially  direct  a  shorter 
notice  to  be  given. 

RULE  86. 

If  a  rehearing  is  granted,  the  petitioner  shall  lose  the  benefit 
thereof,  unless  he  shall,  within  ten  days  thereafter,  deposit 
with  the  register,  fifty  dollars,  to  answer  the  costs  and  dama- 
ges of  the  adverse  party,  if  the  decree  or  order  shall  not  be 
materially  varied.  If  the  cause  is  reheard,  the  party  obtaining 
the  reheating,  shall  have  the  right  to  open  and  close  the  argu- 
ment. 

RULE  87. 
No  private  agreement  or  consent  between  the  parties,  in 
respect  to  the  proceedings  in  a  cause,  shall  be  alledged  or  sug- 
gested by  either  of  them  against  the  other,  unless  the  same 
shall  have  been  reduced  to  the  form  of  an  order,  by  consent, 
and  entered  in  the  book  of  common  orders;  or  unless  the  evi- 
dence thereof  shall  be  in  writing,  subscribed  by  the  party 
against  whom  it  is  alledged  or  suggested,  or  by  his  solicitor  or 
counsel. 


Time  on 
rules  and 
orders. 


Where  a  default  is  entered  contrary  to  an  agreement  between  the  so'icitors  of  the  parties, 
the  court  cannot  consider  the  default  as  irregular  if  the  olijection  is  insisted  on  that  the  agree- 
ment was  not  in  writing.  But  a  default  ni;iy  he  set  aside  upon  terms  where  the  party  against 
whom  it  has  been  entered,  has  relied  upon  a  verbal  agreement  of  the  adverse  party.  Wager 
vs.  Stickle,  3  Faige  R.,  .MT. 

This  rule  does  not  apply  to  agreements  made  by  the  parties,  or  their  solicitors  or  counsel,  in 
the  presence  of  the  court ;  or  to  an  agreement  relative  to  the  proceedings  on  a  reference  made 
in  the  presence  of  a  master,  and  certified  by  the  master  to  have  been  thus  made.  Corning  vs. 
Cooper,  7  Paige  R.,  587. 

RULE  88. 

All  rules  to  lake  effect,  nisi,  &c.,  unless  otherwise  specially 
directed,  shall  be  rules  of  eight  days;  and  the  time  on  all  rules, 


CHANCERY  RULES.  Jv 

orders,  notices  and  proceedings,  where  a  time  is  given  or  sta- 
ted, shall,  unless  otherwise  expressly  provided,  be  deemed  and 
taken  to  be,  one  day  inclusive,  and  one  day  exclusive;  but  if 
the  time  expires  on  Sunday,  the  whole  of  the  succeeding  dav 
shall  be  included. 

Where  u.  proceeding  in  u  cause  is  required  to  be  had  within  a  limited  time,  as  within  a  cer- 
tain number  of  days  from  or  after  the  entry  of  an  order,  or  the  service  of  a  notice,  &c.,  the 
whole  of  the  first  day  is  to  be  excluded  in  the  conipulation  of  time  ;  but  where  previous  notice 
of  a  motion  or  other  proceertin°  in  a  suit,  is  required  to  lje  given,  tlic  whole  of  the  day  on  which 
the  motion  was  served,  is  included  in  the  computation  ;  and  the  day  upon  which  a  motion  is  to 
be  made,  or  other  proceedings  had,  is  excluded.  VandeTburgk  vs.  Van  Rensselaer,  6  raife  R., 
147. 

RULE  89. 

The  court  upon  special  cause  shown,  may  extend  the  time  Timemaybc 

-  .  .  .  II-  "  cvtcnded, 

for  putting  in  or  serving  any  pleadins,  or  exception,  or  for  anv  ai'i 'lefauit 

.'JO'  I  ■  J    may  iig  ggj 

Other  proceeding  which  is  required  by  the  rules  of  the  court,  ='^'^''°n 
to  be  done  within  a  limited  time;  and  may  set  aside  any  order, 
or  decree,  obtained  by  default   or  otherwise,  upon  such  terms 
as  may  be  deemed  just  and  proper. 

Where  the  proofs  in  the  cause  are  regularly  closed,  the  court  will  not  open  the  order  to  close 
the  proofs  for  the  purpose  of  enabling  the  defendant  to  establish  an  equitable  defence.  Fulton 
bank  vs.  Beach,  1  Paige  R.,  429. 

The  court  of  chancery  has  power,  even  after  enrolment,  to  open  a  resular  decree  obtained  by 
defiiull,  and  lo  discharge  the  enrolment,  for  the  purpose  of  giving  the  defendant  an  opportu- 
nity to  make  a  defence  upon  the  merits,  where  he  has  lieen  deprived  of  such  defence  either  by 
mistake  or  accident,  or  by  the  negligence  of  his  solicitor.  Millspavgh  vs.  McBride,  7  Paige 
R.,  509. 

On  an  application  to  open  a  default,  the  answer  or  the  substantial  matters  of  defence,  must 
be  exhibited,  that  the  court  may  look  into  the  same  and  see  whether  the  defence  is  meritorious ; 
and  time  will  be  given  to  prepare  such  answer  or  statement  of  the  matters  of  defence.  Stockton 
vs.  Williams,  el.  al.;  in  c/t.,  Dec.  2,  1640  ;  MSS  ; per  Farnswurlh,  chanrellor. 

A  master  has  no  power  to  dispense  with  or  to  relax  the  general  rules  and  orders  of  the  court. 
Smitk.  vs.  Webster,  3  Myl.  fy  Cra  g  R.,  244. 

RULE  90. 

The  accounts  of  the  register,  with  the  banks   in  which  the  >i;"i'HTin 

°  which  ac- 

moneys  are  directed  to  be  deposited,  shall  be  kept   in  such  a '^'"""  °r"l°- 

r  '  I  ^  ^  neys  paid  m- 

manner,  that  in  the  cash  books  of  the  banks,  and  in  the  bank  lobe^kept? 
books  of  the   register,  it  shall  appear  in  what  particular  suit, 
or  on  what  account,  the  several  items  of  money,  credited  or 
charged,  were  deposited  or  paid  out. 


Ivi  CHANCERY  RULES. 

RULE  9L 

<u"s'fo"/mo-  Oi^ders  upon  the  banks  for  the  payment  of  moneys  out  of, 
pai'dout  of  court,  shall  be  made  payable  to  the  order  of  the  person  enti- 
tled thereto,  or  of  his  solicitor,  or  his  attorney,  duly  autho- 
ized,  and  shall  specify  in  what  particular  suit,  or  on  what 
account,  the  money  is  to  be  paid  out,  and  the  time  when  the 
decree  or  order  authorizing  &uch  payment,  was  made. 

RULE  92. 


court, 


tlrandrnxal  ^^^  register  of  each  circuit  shall  have  power  to  tax  costs, 
tionot  costs.  ^^^  ^^^  Q^  more  masters  residing  in  each  circuit,  shall  be  desig- 
nated and  appointed  by  the  chancellor  as  taxing  masters  of  such 
circuit,  who  shall  be  authorized  to  tax  costs  ;  and  where  costs 
have  been  taxed  by  a  register  or  master,  upon  hearing  of  the 
parties,  an  application  for  a  retaxation,  may  be  made  directly 
to  the  chancellor. 

The  adx-erse  party  upon  taxation  of  costs  is  entilled  to  notice  of  the  taxation  for  the  same 
length  of  time  as  is^  prescribed  by  rule  72,  as  the  time  which  is  to  be  allowed  for  the  service  of 
a  summons  upon  a  reference ;  and  a  taxation  of  costs  without  such  notice,  is  irregular  and 
may  be  set  aside.     Hoffman  vs.  Skinner,  5J'aige  R.,  526.     f-See  also,  rule  \.18.) 

RULE  93. 

Bill  of  costs       If  a  bill  of  costs  offered  for  taxation,  by  or  on  behalf  of  any 

to  specify 

items.  solicitor,  or  of  any  party  who  prosecutes  or  defends  by  a  so- 

licitor, or  by  or  on  behalf  of  any  officer  of  this  court,  who 
prosecutes  or  defends  in  person,  the  several  items  of  disburse- 
ments, and  of  the  fees  of  officers  of  the  court,  shall  be  particu- 
larly specified  thei'ein,  and  not  charged  in  gross,  or  they  shall 
be  disallowed  on  taxation;  and  when  witnesses'  fees  are  charged, 
the  names  of  the  witnesses  shall  be  specified,  and  th-D  i. umber 
of  days'  travel  and  attendance  of  each.  No  allowance  shall 
be  made,  either  as  between  party  and  party,  or  as  between 
solicitor  and  client,  for  the  draft  or  copi  ;s  of  any  repetition  of 
the  statement  of  the  bill  in  the  charging  part  thereof,  or  in  the 
interrogatories,  or  for  any  other  unnecessary  or  improper  mat- 
ter inserted  in  any  pleading,  report,  or  other  proceeding  in  a 
cause.  And  where  the  same  solicitor  appears  for  two  or  more 
defendants  or  different  solicitors,  who  are  partners,  appear  for 


CHANCERY  RULES.  Ivii 


axa- 
lodrfen- 
nts  who 

ari- 


several  defendants,  and  separate  answers  are  put  in,  or  other  ,^^°^"^^ 
proceedings  liad  by  or  for  the  defendants  separately,  the  taxing  [,'°ni 
officer,  in  the  taxation  of  costs,  either  as  between  party  and  iy"^verin 
party,  or  between  solicitor  and  client,  shall  consider  whether  fence.' ^' 
such  separate  answers,  or  other  separate  proceedings,  were 
necessary  and  proper;  and  if,  in  his  opinion,  any  part  of  the 
costs  occasioned  thereby  was  unnecessarily  or  improperly  in- 
curred, the  same  shall  be  disallow'ed.     The  affidavit  of  the  so- Affidavit  of 

'  soliciUirto 

licitor,  or  the  officer  who  prosecutes  or  defends  in  person,  shall  i^^bi","of'^ 
also  be  annexed  to  the  bill  before  it  is  taxed,  stating,  according  ^-^^If/to^ 


taxation,  ve- 


aw 
e 


certain  ca- 
ses. 


to  the  best  of  his  knowledije  and  belief,  tliat  the  several  dis- rif/iim  Ttie 

.  *"  correc;nes3 

bursements  charged   in   the  bill,   have    boon   aplually  and  ncccs- ofthechar- 

sarily  incurred,  or  paid;  tiiat  the  copies  of  exemplification  of 
documents  charged  therein,  were  actually  and  necessarily  used, 
or  obtained  for  use;  that  such  bill  of  cost  contains  no  charge 
for  any  draft,  engrossment,  or  copy  of  any  pleadinir,  or  other 
proceeding,  which  has  not  been  made,  or  for  any  other  service 
which  has  not  been  performed,  except  such  prospective  servi- 
ces as  are  allowed  by  law,  or  the  practice  of  the  court,  to  be 
taxed;  and  that  the  number  of  folios  contained  in  tfie  draft,  or 
in  the  copies  of  any  pleading  or  proceedings  are  not  over- 
charged in  such  bill.     But  the  taxinff  officei',  in  lieu  of  the  affi-  Affidavit  of 

"  .  c?  '  clerk  or  law 

davit  of  the  solicitor,  or  officer  who  prosecutes  or  delends  in  ['ec;eive'd?n' 
person,  may  receive  the  affidavit  of  his  clerk,  or  law  partner, 
annexed  to,  and  verifying  the  correctness  of  such  bill  of  costs; 
provided  a  sufficient  excuse  is  stated  in  such  affidavit  for  not 
producing  the  personal  affidavit  of  such  solicitoi-,  or  officer,  by 
reason  of  sickness,  death,  or  necessary  absence. 

A  trustee  who  refuses  to  join  in  the  answer  of  his  co-trustee,  and  who  does  not  put  in  an  an- 
8wcr  differing  from  that  of  such  co-truslcc,  is  not  entitled  to  costs.  Young  vs.  ScoU,  Jones' 
Ezeh.  R  ,  71. 

In  the  bill  of  costs  offered  for  taxation,  each  item  of  the  examiner's,  register's,  and  mas- 
ter's bills,  should  be  set  out  al  leaglh,  and  not  charge!  in  gross.  Stafford  vs.  Bryan,  2  Paigt 
R.,  45. 

Where  postage,  or  other  disbursetrents,  are  charged  in  a  bill  of  costs,  eachjtem  of  such  dis- 
b'lrsemenls,  and  the  occasion  and  cireunislnnces  of  the  e.\pcn:liture,  should  be  particularly  spc- 
eified  in  the  bill  and  verified  by  affidavit.    Rogers  vs.  Rogers,  2  Paige  R..  459. 


Vol.  I.  8* 


Iviu  CHANCERY  RULES. 

RULE  94. 

Taxed  bill  of      The  taxcd  bill  of  costs,  with  the  original  affidavit  annexed, 

costs  and  af- 

fidavittobe  gj^aii  bg  fljgfj  -yvjth   the  register  within   twenty  days  after  the 

filed  within  &  j  j 

twenty  days,  taxation;  and  before  the  solicitor  or  the  officer  who  prose- 
cutes or  defends  in  person,  shall  be  entitled  to  payment  or 
to  issue  an  execution,  or  other  process,  for  the  collection  of  the 
costs  thus  taxed.  But  if  payment  of  the  costs  is  volunta- 
rily made  within  twenty  days,  the  solicitor  or  officer,  instead 
of  filing  the  taxed  bill  and  affidavit,  except  where  the  bill  of 
costs  required  by  law  is  to  be  annexed  to  a  decree  upon  en- 
rolment, may  deliver  such  bill  and  affidavit  to  the  party  or 
person  from  whnm  he  receives  euch  payment,  endorsing  a  re- 
ceipt for  the  amount  received  upon  the  taxed  bill.  And  no 
register  or  master,  who  is  ordered  to  pay  costs  out  of  money 
in  his  hands,  shall  pay  the  same  until  the  taxed  bill  and  affida- 
vit are  duly  filed,  as  required  by  this  rule. 

RULE  95. 

dosemort-^      In  a  bill  for  foreclosure  or  satisfaction  of  a  mortgage,  it  shall 
fet^out'the  °  not  be  necessary  or  allowable   to  set   out  at  length,  the   rights 

riglns  of  de-  ,  i     i    r       i  i 

fendariisun-  and  Hiterests  ot  the  several  deiendants  who  are  purchasers  of, 

necessarily. 

or  who  have  lien&-on,  the  equity  of  redemption  in  the  mort- 
gaged premises,  subsequent  to  the  registry  or  recording  of  the 
complainant's  mortgage,  and  who  claim  no  right  in  opposition 
thereto;  but  it  shall  be  sufficient  for  the  complainant,  aftt-r  set- 
ting out  his  own  right  and  interest  in  the  premises,  to  state 
generally,  that  such  defendants  have,  or  claim,  some  inte- 
rest in  the  premises,  as  subsequent  purchasers,  or  incum- 
bratjces,  or  otherwise;  and  if  any  such  rlftfendants  are,  by  the 
misstatements  of  the  complainant  in  his  bill,  or  oihcrwise,  un- 
necessarily compelled  lo  put  in  an  answer  to  protect  iheir 
rights,  the  costs  occasioned  thereby  may,  in  the  discretion  of 
the  court,  be  charged  on  the  complainant  personally;  and  if 
such  defendants  unnecessarily  put  in  an  answer  to  such  bill, 
the  extra  costs  occasioned  by  such  answer,  may  be  charged 
on  the  defendants  personally,  in  the  discretion  of  the  court. 

Wheie  the  complainant  in  a  mortgage  case  unnecessarily  sets  out  the  rights  of  the  seyeral 


CHANCERY  RULES.  lix 

defendants  at  length,  tlie  bill  may  be  cTcepted  to,  for  impertinence;  and  if  not  bo  excepted  to, 
the  extra  costs  occasioned  by  auch  unnecessary  matter  in  the  complainant's  bill,  must  be,  disal- 
lowed on  taxation  of  costs.     Union  Ins.  Co.  vs.  yan  Rensselaer,  4  Paige  It,  85. 

RULE  96. 

If  a  bill  to  foreclose  a  mortfraije  is  taken  as  confessed,  or  the  a  reference 

DO  'of  course,  to 

right  of  the  con:)plainant,  as   stated   in  his  bill,  is   adnnitted  by  an^nrdue 

,  ,  ,  1  /•  r        ■  •  £   X  on  'he  njort- 

the  answer,  he  may  have  an  order  of  course,  referring  it  to  a  gage. 
master  to  compute  the  amount  due  to  the  complainant  and  to 
such  of  the  defendants  as  are  prior  incumbrancers  of  the  mort- 
gaged premises;  and  if  the  dcfondant  is  an  infant,  and  has  put 
in  a  general  answer  by  his  guardian,  or  any  of  the  defendants 
are  absentees,  the  complainant   may  have  a  similar  order,  of 
course,  referring  it  to  a  master   to  take  proof  of  the  facts  and  ^^"^f^of  the 
circumstances  stated  in  the  complainant's  bill,  and  to  compute  ct'c\'mstin- 
the  amount  due  on  the   mortgage,  preparatory  to  the  hearing  ^hl  bit! 
of  the  cause.     But  every  such  cause  shall  be  regularly  brought 
to  hearing  at  term,  after  the  coming  in  of  the  master's  report, 
before  a  final   decree  is  entei'ed   therein;   and   if  the   bill   has 
been  taken   as   confessed,  the  complainant   shall   show  to  the 
court,  at  the   hearing,  by  affidavit  or  otherwise,  that   the  pro- 
ceedings to  take  the  bill  as   confessed,  have   been   regular,  ac- 
cording  to  the  rules  and  practice  of  the   court.     He  shall  also 
show  whether  the  bill  has  been  taken  as   confessed   against  all 
of  the  defendants,  upon   service  of  subpoena,  or   after  an   ap- 
pearance,  or  whether  some   of   them   have   been  proceeded 
ajiainst  as  absentees. 

It  is  improper  to  detail  tlie  proceedings  at  length  in  an  affidavit  of  regularity.  The  affidavit 
should  merely  stale  that  the  bill  has  been  tiilien  as  confessed,  upon  a  personal  service  of  the 
subpffina  upon  all  of  the  defendants,  or  after  a  voluntary  appearance,  or  upon  a  proceeding 
against  them,  or  some  of  them,  as  absentees,  as  the  case  may  be,  and  that  all  the  proceedings 
to  take  the  bill  as  confessed,  have  been  regular.     Nott  vs.  Hill,  6  Paige  Jt,  9. 

Where  any  of  the  defendants  contest  the  complainant's  rights,  an  order  of  course,  to  com- 
pute the  amount  due  on  the  mortgage  cannot  be  entered  under  this  rule  ;  but  if  there  are  any 
of  the  defendants  who  are  absentees,  an  order  of  course,  to  ascertain  their  rights,  may  be  en- 
tered under  the  twenty-second  rule.     Corning  vs.  Bailer,  6  Paige  R.,  17S. 

In  computing  the  amount  due  on  a  mortgage,  the  master  is  not  authorized  to  allow  the  com- 
plainant the  amount  of  a  premium  paid  for  an  insurance  of  the  mortgaged  premises,  unless 
it  was  paid  by  the  express  agreement  of  the  mortgagor  or  the  owner  of  the  equity  of  redemp- 
tion. But  the  master  may  allow  the  mortgagee  for  taxes  paid  by  him,  which  were  a  lien  on 
the  mortgaged  premises.    Feaure  vs.  Tf'inans,  Uopk.  R.,  2S3. 

If  the  whole  mortgage  money  has  not  become  due,  the  complainant  may  have  a  clause  insert- 


Ix  CHANCERY  RULES. 

ed  in  the  order  of  courBC,  entered  under  this  rule,  directing  the  master  to  ascertain  and  report 
whelher  the  mortgaged  premises  can  be  sold  in  parcels.     Everittva.  Hoffman,  1  Paige  R.,  648. 

Where  the  eomplainani's  claim  lo  priority  in  a  mortgage  case  is  denied  liy  the  defendant's  an- 
swer, the  master,  upon  the  ordinary  reference  to  compute  the  amount  due  upon  the  mortgage, 
previous  to  the  hearing  of  tlie  cause  under  this  rule,  is  not  authorized  to  settle  the  question  of 
priority  between  the  parties,  but  must  leave  it  for  tlie  decision  of  the  court  upon  the  hearing. 
Harris  vs.  Fly,  7  Paige  R.,  421. 

RULE  97. 

iftiiereisa       Oti  the  coming  in  and  confiiination  of  the  master's  report  of 

surplus  rais-  r-  i  •  t  •        i      ii 

edonthesaie  the  salc  of  mortgaged  premises,  if  it  shall  appear  there  are  any* 

ofmortga-  O    o        i  '  I  r 

ged premises  guj-pjug  monevs  remaining  in  court,  after  satisfying  the  amount 

the  subse-  1  •'  o  '  .        o 

cumbra"rcers  duc   the  Complainant,  any  defendant,  upon  filing  an  affidavit 
fe^enL-eYo'^'''  that  such  surplus  has  been  paid  into  court,  and  that  he  is  enti- 

9  s  certain 

their  rights,  tied  to  the  same,  or  some  part  thereof,  may  have  an  order  of 
course,  referring  it  to  a  master  to  ascertain  and  report  the 
amount  due  to  such  defendants,  or  to  any  other  person,  and 
which  is  a  lien  upon  such  surplus  moneys,  and  to  ascertain  the 
priorities  of  the  several  liens  thereon;  to  the  end,  that  on  com- 
ing in  and  confirmation  of  the  report,  such  further  order  and 
and  decree  may  be  made  for  the  distribution  of  surplus  moneys, 
as  may  be  just;  and  every  defendant  who  has  appeared  in  the 
cause,  and  every  person  who  has  left  a  written  notice  of  his 
claim  to  such  surplus  moneys  with  the  register,  or  assistant 
register,  where  the  same  are  deposited,  shall  be  entitled  to  no- 
Mns^nnfo"In-  I'ce  to  attend  the  master  on  such  reference.  And  any  person 
eu'rpiu's"nio°  making  a  claim  to  such  surplus  moneys,  and  who  shall  fail  to 

nevs,  lialjle  i  i-    i     i  •         i     •  i         i  •  i      <•  i 

for  costs.  establish  his  claim,  on  the  hearing  beiore  the  master,  may  be 
charged  with  such  costs  as  the  other  parties  have  been  subjec- 
ted to,  by  reason  of  such  claim;  and  the  parties  succeeding  on 
such  reference,  may  be  allowed  such  costs  as  the  court  may 
deem  reasonable;  but  no  costs  unnecessarily  incurred  on  such 
reference,  or  previous  thereto,  by  any  of  the  parties,  shall  be 
allowed  on  taxation,  or  paid  out  of  such  surplus. 

RULE  98. 

S'litem.how      '^^^  petition  for  the   appointment  of  a  guardian,  ad  litem, 
appointed.     ^\^^\\  ]qq  by  y\^Q  infant  in  person,  if  he  is  of  the  age  of  fourteen 

years  and  upwards;  but  if  he  is  under  fourteen,  it  shall  be 
presented   by  his  next  kin,  or  some  other  friend  of  the  infant. 


CHANCE liY  RULES.  hi 

who  has  no  interest  in  the  suit,  adverse  to  that  of  tlie  infant. 

Uut  if  an  infant  defendant,  or  some   disinterested  relative  or  when  np- 

poiiilcd  on 

friend,  in  his   behalf,  does  not   procure  the   appointment  of  a  appiicuion 

'  'I  1  '  ol  coiii[ilajn- 

guardian,  ad  litem,  witiiin  the  usual  time  for  appearance,  as  ■'"'• 
prescribed  by  the  rules  of  this  court,  the  adverse  party  may 
apply  to  the  court  to  appoint  a  suitable  person  as  the  guardian 
for  such  infant;  and  such  party  in  his  petition,  shall  briefly 
state  the  age  and  residence  of  such  infant,  the  general  object 
of  the  suit  or  proceeding,  and  the  nature  of  the  infant's  inter- 
est therein. 

The  complainant,  or  bis  solicitor,  is  not  pcnnlttej  to  nominate  a  guardian,  ad  litem,  for  an 
infant  defendant ;  but  upon  the  appliaition  of  the  complainant,  the  chancellor  will  designate 
an  officer  of  the  court  to  act  as  guardian,  ad  litem,  if  the  infant  does  not,  within  ten  days  after 
the  service  of  the  order  to  procure  a  guardian  to  be  appointed  on  his  own  petition.  Knicker- 
hocker  vs.  De  Freest,  2  Paige  ft.,  301. 

A  copy  of  the  order  may  be  served  personally  upon  the  infant,  if  he  is  of  the  age  of  fourteen 
years,  or  upwards,  and  if  he  is  under  that  age,  then  upon  his  general  guardian,  or  the  person 
with  whom  he  resides.     Idem. 

Where  the  infant  is  a  non-resident,  special  directions  must  be  given  as  to  the  manner  of  ser- 
vice of  the  order,  if  any  notice  thereof  shall  be  deemed  requisite.    Idem. 

RULE  99. 

No  guardian,  ad  litem,  for  an  infant  defendant,  or  next  friend  guaJ.ji'aV,!'^ 
of  an  infant  complainant,  unless  he  has  given  security  to  the 
infant  according  to  law,  shall,  as  such  guardian,  receive  any 
money  or  property  belonging  to  such  infant,  or  which  may  be 
awarded  to  him  in  the  suit,  except  such  costs  and  expenses  as 
may  be  allowed  by  the  court  to  the  guardian,  out  of  the  fund, 
or  recovered  by  the  infant  in  the  suit.  Neither  shall  the  gene- 
ral guardian  of  an  infant  receive  any  part  of  the  proceeds  of 
the  sale  of  real  property  belonging  to  such  infant,  sold  under  a 
decree  or  order  of  the  court,  until  the  guardian  has  given  such 
further  security  for  the  faithful  discharge  of  his  trust,  as  the 
court  may  direct. 

RULE  100. 

All  bills  for  the  purpose  of  obtaining  a  divorce,  whether  the  vorce't'obe 
husband  or  wife  is  complainant,  shall  be  duly  verified  by  oath,  *''^°"°*'*'- 
in  the  usual  manner  of  verifying  bills,  where  by  the  course  and 


Ixii  CHANCERY  RULES. 

ofcertain'^    pi'actice  of  the  court,  an  oath  is  required.     In  a  bill  for  a  di- 
inser"fi'ki''^  vorcG,  On   the  ground  of  adultery,  the  complainant  must  also 
vo[ce°'^'^'"    positively  aver,  that  the  adultery  charged  in  the  bill,  was  com- 
mitted  without   his  consent,  connivance,   privity,  or  procure- 
ment: and  that  he  has  not  voluntarily  cohabited  with  the  de- 
fendant since  the  discovery  of  such  adultery. 

If  a  bill  for  a  separation  is  filed  by  a  wife  in  her  own  name,  the  defendant  may  demur,  ffood 
vs.  Wood,  2  Paige  R.,  454. 

A  feme  covert  cannot  file  a  bill  against  her  husband  without  pro  chein  ami.  Peltier  vs.  Pel- 
tier, 1  fforr.  Ch.  R.,  19. 

But  under  the  provisions  of  chapter  two  title  seven  part  second,  (R.  S.  336,  gee.  14,J  the  wife 
aVing  a.  petition  foT  a  divorce,  must,  (if  of  souiid  mind  and  of  the  age  of  legal  consent  to  a  niar- 
ringe,)  sign  the  petition.  Graham  vs.  Graham,  MSS.  in  Ch.  August,  1840.  Per  Farnsworth, 
chancellor. 

RULE  101. 

Reference  to      If  any  such  bill   is  taken  as  confessed,  or  the  facts  charged 

take  proof  of 

f^sciiar-  therein  are  admitted  by  the  answer,  the  complainant  may  ap- 
ply to  the  court,  on  any  regular  motion  day,  or  in  term,  upon 
due  proof  of  the  regularity  of  the  proceedings  to  take  the  bill 
as  confessed,  or  upon  the  bill  and  answer,  for  a  reference  to  a 
master  to  take  proof  of  all  the  material  facts  charged  in  the 
bill,  and  to  report  such  proof  to  the  court,  with  his  opinion 
thereon. 

Upon  a  bill  to  annul  a  marriage,  on  the  ground  of  physical  incapacity,  if  such  bill  he  taken  as 
confessed,  the  defeniant,  if  within  the  jurisdiction  of  the  court,  will  he  required  to  answer,  on 
oath  before  the  master,  as  to  the  facts  alledged  in  the  bill,  and  to  submit  to  such  a  personal  exa- 
mination as  may  be  necessary  te  ascertain  the  existence  of  the  alletlged  incapacity,  and  wheth- 
er the  same  is  incurable.     Devanbaugh  vs.  Devanbaugh,  5  Paige  R,,  554. 

RULE  102. 
Adultery  of       ^he  defendant  in  the  answer,  may  set  up  the  adultery  of  the 

theconiplai-  >  ^  i  j 

may'btset    complainaut,  or  any  other  matter  which  would   be  a  bar  to  a 

upmthean-  jj^^j.^^g^  Separation,  or  the  annulling  of  a  marriage  contract; 

and  if  an  issue  is  taken  thereon,  it  shall  be  tried  at  the  same 

time,  and  in  the  same   manner  as   other  issues  of  fact  in  the 

cause. 

The  defendant  in  his  answer  may  deny  the  adultery  charged  in  the  bill,  arid  may  also  in  the 
same  answer,  set  up  the  adultery  of  the  complainant,  or  a  condonation  of  the  offence,  in  bar  of 
ths  suit.     Wood,  vs.  Wood,  2  Paige  R.,  108. 

And  If  the  adultery  of  the  husband  is  not  discovered,  or  is  not  committed  until  after  the  ans- 


CHANCERY  RULES.  Ixiii 

wer  of  the' defendant  has  been  put  in,  tlic  court,  upon  a  proper  application,  will  permit  the  de- 
fendant to  put  in  a  supplemental  answer,  or  to  file  a  cross  bill,  for  the  purpoFf  of  selling  up 
such  new  defence.     Smith  vs.  Srnith,  4  Paige  R.,  432. 

RULE  103. 

No  sentence  or  decree  of  nullilv,  declaring;  void  a  marriaf^e  >'o sentence 

.  '  o  o      ol  nullity  or 

contract,  or  decree  for  a  divorce,  or  for  a  separation  or  limited  'l![^j.'^^^f^^^' 
divorce,  shall  be  made  of  course,  by  the  default  of  the  defen-  b^r'oTs'^n", 
dant;  or  in  consequence  of  any  neglect  to  appear  at  the  hear- 
ing of  the  cause  or  by  consent.  And  every  such  cause  shall  be 
heard  after  the  trial  of  the  feigned  issue,  or  upon  the  coming 
in  of  the  master's  report,  at  a  stated  term  of  the  court;  but 
when  no  person  appears  on  the  part  of  the  defendant,  the  de- 
tails of  the  evidence  in  adultery  causes  shall  not  be  read  in 
public,  but  shall  be  submitted  to  the  chancellor  in  open  court. 

RULE  104. 

When  a  narty  is  ordered  to  pay  the  costs  of  any  interlocu-  Payment  of 

'  ^  ...  imerlocutory 

tory  proceedings,  and  no  time  of  payment  is  specified  in  the  '^"^[^•^H'^J 
order,  he  shall  pay  them  within  twenty  days  after  the  filing  of 
the  taxed  bill,  and  affidavit  and  service  of  a  copy  of  the  order 
of  such  taxed  bill;  or  if  a  gross  sum  is  specified  in  the  order, 
within  twenty  days  of  service  of  a  certified  copy  of  the  or- 
der. And  if  he  neglects  or  refuses  to  pay  such  costs  within 
the  time  prescribed  as  aforesaid,  or  specified  in  the  order,  the 
adverse  party,  on  an  affidavit  of  the  personal  service  of  such 
copies,  and  a  demand  of  payment,  and  that  such  costs  have 
not  been  paid,  may  have  an  execution  therefor,  or  move  for 
an  attachment  against  the  delinquent. 

A  pEirty  who  is  conimitled  as  for  a  contempt  for  the  non-payment  of  costs  or  other  sum  of 
money,  is  entitled  to  the  jail  lil)crtics.  Tfic  People  vs.  Bennett,  4  Paig-e  R.,  2S-i  -,  1  I/offm.  Pr., 
431 ;  2  Id.,  9*2;  Van  Wezlc  vs.  fan  Wezle,  3  Paige  R.,  38  ;  Graham  vs.  Graham,  in  Ch.  Febru- 
ary term,  1841,  per  Farnstcorth,  chancellor,  MSS.  But  if  he  is  committed  for  the  non-payment 
of  a  fine  imposed  upon  him  by  tlie  court,  upon  a  conviction  for  a  contempt,  he  must  be  confined 
within  the  walls  of  the  prison.     The  People  vs.  Bennett,  4  Paige  R.,  282. 

A  party  in  contempt  may  apply  to  the  court  to  set  aside  proceedings  against  him  which  arc 
irregular.     King  vs.  Bryant,  3  Myl.  <V  Craig  R.,  191.     (See  also,  Peltier  vs.  Peltier,  1  Harr.  Ch. 

R.,  19.; 

A  complainant  who  is  in  contempt  for  not  paying  the  costs  of  a  motion,  may  still  compel  the 
defendant  to  answer  his  bill.  Bates  vs.  mison,  3  Myl.  if  Craig's  R.,  197.  But  a  parly  is  not 
to  apply  to  the  court  for  a  favor  until  he  has  purged  his  contempt.  Jokmon  vs.  Phinner/,  1 
Paige  R,  646. 


Ixiv  CHANCERY  RULES. 

RULE  105. 


Bill  of  re- 
view not  to 
be  file  I  with- 


On  filing  a  bill  of  review,  or  other  bill  in  the  nature  of  a  bill 
oun'eavl,""'  of  roview,  the  connplainant  shall  make  the  like  deposit  or  give 

anil  a  deposit  ,  ,  ,  .         ,  ,  .    ,      . 

to  be  made,  security  to  the  adverse  party,  in  the  same  amount  which  is  or 
would  be  required  on  an  appeal  from  an  order  or  decree  com- 
plained of;  and  no  such  bill  shall  be  filed,  either  upon  the  dis- 
covery of  new  matters,  or  otherwise,  without  special  leave  of 
the  court  first  obtained,  nor  unless  the  same  is  brought  within 
the  time  allowed  for  bringing  an  appeal. 

Where  the  complainant  in  a  bill  of  rcWew,  ihroiigh  a  mistake  as  to  the  practice,  neglects  to 
give  security,  or  to  make  the  requisite  deposit,  the  court  may  permit  him  to  do  it,  nunc  pro  tunc. 
Webb  vs.  Pell,  1  Paige  R.,  564. 

A  bill  of  revivor  and  supplemental  bill  in  the  nature  of  a  bill  of  review,  must  be  founded  up- 
on an  affidavit  of  the  discovery  of  new  matter ;  and  it  cannot  be  filed  without  the  special  leave 
of  the  court,  and  upon  giving  security  as  on  a  bill  of  review.  Pendleton  vs.  Fay,  3  Paige  R., 
204. 

RULE  106. 
Proceedings       Whcn  the  final  decree  awards  costs  to  any  or  all  of  the  par- 

to  compel  •  ' 

furnuh taxed  ^'^^'  ^^  ^^  V^^^  °^^  ^^  ^^^  procccds  of  a  salo,  or  Otherwise,  any 
bill  of  costs,  party -who  wants  an  enrolment,  may  give  notice  to  any  other 
party  entitled  to  costs  under  the  decree,  to  file  a  ta.xed  bill  of 
such  costs  with  the  register  with  whom  such  decree  is  entered, 
within  fifteen  days,  or  that  the  decree  will  be  enrolled  without 
such  taxation. 

RULE  107. 

If  the  parly        If  a  party,  on  whom  such  notice  is  served,  neglects  to  file 
file  a  taxed    his  taxcd  bill  of  costs  within   the   time   prescribed,   the  party 

bill,  thede-  .  jt  i        •  r      i  i  '  •' 

creemaybe   crivinsT  such  notice,  on   filinij   an  affidavit  of  the  due  service 

enrolled  &  &  ?  o 

without  it.  thereof,  may  have  the  decree  enrolled,  without  annexing  there- 
to the  taxed  bill  of  the  party,  who  has  neglected  to  fite  the 
same. 

RULE   108. 
The  party         When  such  taxcd  bill  is  received  at  any  time  before  the  ac- 

neglecting  to 

furnish  a      tual  enrolment  of  the  decree,  it  shall  be  considered  as  in  time, 

taxed  bill  of  '  ' 

JoLTthe^'^"  and  shall  be  annexed  to  the   enrolment,  as   required  by  law. 
same.  g^^  j^  ^^^  party  neglects  to  file  his  taxed  bill  of  costs  in  the 


CHANCERY  RULES.  ixr 

office  where  the  final  decree  is  entered,  until  after  such  decree 
has  been  regularly  enrolled,  he  shall  forfeit  his  right  to  cost 
under  the  decree. 

RULE  109. 

Where  a  creditor,  by  judgment  or  decree,  files  a  bill  in  this  ^^[f  to^ga^h 
court  against  his  debtor,  to  obtain  satisfaction  out  of  the  equi-  tcrcsu.'must 
table  interests,  things  in  action,  or  other  property  of  the  lat-  amount  due. 
ter,  after  the  return  of  an  execution  unsatisfied,  he  shall  state 
in  such  bill,   either  positively,    or  according  to  his  belief,  the 
true  sum  actually  and  equitably  clue  on  such  judgment  or  de- 
cree, over  and  above  all  just  claims  of  the  defendant,  by  way 
of  offset,  or  otherwise.     He  shall  also  state  that  he  knows,  or  Andtiievs- 

1  1      !•  I  1     f        1  I  lueoflhede- 

has  reason  to  believe,  the   defendant  has   equitable  interests,  fcndanfs 

'■  property  or 

things  in  action,  or  other  property,  of  the  value  of  one  hmidred  ^sens. 
dollars  or  more,  exclusive  of  all  prior  claims  thereon,  which 
the  complainant  has  been  unable  to  discover  and  reach  by  exe- 
cution on  such  judgment  or  decree.  The  bill  shall  likewise 
contain  an  allegation  that  the  same  is  not  exhibited  by  collu- 
sion with  the  defendant,  or  for  the  purpose  of  protecting  the 
property  or  effects  of  the  debtor  against  the  claims  of  other 
creditors;  but  for  the  sole  purpose  of  compelling  payment  and 
satisfaction  of  the  complainant's  own  debt. 

A  creditor's  bill  cannot  be  filed  until  after  the  return  day  of  the  execution  against  the  defend- 
ant, although  the  execution  is  actually  returned  before  that  time  ;  as  the  complainant  must 
state  in  his  bill  the  time  when  the  execution  was  returnable,  as  well  as  the  sheriff's  return. 
Cassiday  vs.  Meacham,  S Paig-eR.,3U.;   Stewart  VS..  Stevens,  1  Harr.  Ch.  R.,  109. 

AH  the  judgment  debtors  may  be  made  parties  to  a  creditor's  bill,  if  any  of  tliem,  or  all  of  them 
collectively,  have  property  exceeding  one  hundred  dollars,  exclusive  of  prior  claims  thereon, 
which  property  could  not  be  reached  by  the  execution  at  law.  And  one  of  such  judgment  debt- 
ors, who  is  himself  destitute  of  property,  will  not,  for  that  reason,  be  entitled  to  costs,  except 
in  a  case  where  the  complainant,  instead  of  taking  the  bill  as  confessed  against  him,  has  com- 
pelled him  to  appear,  or  to  answer  unnecessarily.     Van  Cleef  vs.  Sickles,  5  Paige  R.,  505. 

The  omission  in  a  creditor's  bill,  of  the  averments  required  by  this  rule,  is  a  good  ground  of 
demurrer.    McElicain  vs.  Willis,  3  Paige  R.,  505. 

This  rule  is  adopted  from  the  IPOtli  rule  of  the  court  of  chancery  of  the  state  of  New  York, 
and  the  word  "  or,"  after  the  word  "  dollars,"  should  be  "  and,"  to  make  the  rule  as  broad  as 
the  statutory  provision,  {R.  S.,  365,  sec.  24,)  to  which  it  is  intended  to  conform.  The  averment 
should  be,  "  that  the  value  of  the  defendant's  equitable  interests,  &c.,  exceeds,  or  is  more  than 
one  hundred  dollars.     (See  Bradt  vs.  Kirkpatrick,  1  Paige  R.,  63.; 

The  complainant  must  show  affirmatively  in  his  bill,  that  he  has  exhausted  his  remedy  by 
issuing  an  execution  to  the  county  in  which  the  defendant  resided  at  the  time  when  such  e.xe- 
eution  was  issued;  or  he  must  state  in  his  bill  some  sufficient  excuse  for  issuing  his  execution 
to  a  different  county.     Retd  vs.  Wheaton,  7  Paige  R.,  663. 

Vol.  1.  9* 


Ixvi  CHANCERY  RULES. 

A  creditor's  bill  should  aver  that  the  defendant  was  a  resident  of  the  county  to  which  the 
execution  was  issued ;  after  stating  the  county  to  which  the  execution  was  issued,  the  bill 
should  aver,  "  where  the  said  A.  U.  then  resided."  Gaylord  vs.  Hendrichson,  in  Ch.,  July  21. 
1840;  per  Walicorth,  chancellor. 

AVhere  the  plaintiff  brings  a  suit  at  law  in  a  courl  of  the  United  States,  and  obtains  judgment 
therein,  he  cannot,  upon  the  return  of  an  execution  unsatisfied,  file  a  bill  in  the  court  of  chan- 
cery of  this  state  against  his  debtor,  to  reach  the  equitable  rights  of  such  debtor,  which  are  not 
subject  to  a  sule  upon  the  execution  at  law.     Tarbell  vs.  Griggs,  3  Paige  R.,  207. 

A  creditor's  bill  may  be  filed  upon  a  judgment  at  lavs',  after  the  return  of  an  execution  unsatis- 
fied, although  the  complainant  has  brought  a  suit  upon  such  judgment,  and  recovered  a  new 
judgment.     Bates  vs.  Lyons,  7  Paige  R.,  85. 

The  assignee  of  a  judgment,  after  an  execution  has  been  returned  thereon  unsatisfied,  may 
file  a  creditor's  bill  upon  such  judgment,  vs^ithout  taking  out  a  new  execution  after  the  assign- 
ment.    Gleason  vs.  Gage,  7  Paige  R.,  121. 

RULE  110. 

Such  bills         Every  such  creditor's  bill  shall  be  verified  by  the  oath  of  the 

mustbeveri-         -"    ^    j    "  J 

fndmayte'  Complainant,  or  in  case  of  his  absence  from  the  state,  or  other 
c^u^rse!"'  °^  sufficient  cause  shown,  by  the  oath  of  his  agent  or  attorney. 
Such  bills  may  be  amended  of  course,  in  the  same  manner  as 
bills  not  sworn  to,  if  the  amendments  are  merely  in  addition 
to,  and  not  inconsistent  with  what  is  contained  in  the  original 
bill.  But  all  such  amendments  shall  be  verified  by  oath  in  the 
same  manner  as  the  bill  is  required  to  be  verified. 

In  the  order  for  leave  to  amend  a  creditor's  bill  under  this  rule,  the  particular  amendments  in- 
tended need  not  be  specified.  Hunt  vs.  Holland,  3  Paige  R.,  78.  But  no  order  to  amend  is 
now  required.     (See  Rule  28.) 

RULE  111. 

Debtor  need       The  dcbtor  against  whom  a  creditor's  bill  is  filed,  shall  not 

not  answer 

the  bill,  but   bg  subjected  to  the  expense  of  puttmg  in  an  answer  thereto  in 
l'L"'!!=''L'r  the  usual  manner,  if  he  shall  cause  his  appearance  to  be  enter- 
fhataVc'el  cd  within  twenty  days  after  the  return  day  of  the  subpoena, 
pointed*!'''     and  shall,  within  the  time  allowed  for  an  answer,  deliver  to  the 
complainant,  or  his  solicitor,  a  written  consent  that  an  order 
may  be  entered  taking  the  bill  as  confessed;  and  for  the  ap- 
pointment of  a  receiver,  and  for  a  reference  to  take  the  exami- 
nation of  the  defendant,  in  conformity  to  this  rule.     Upon  pre- 
senting such  written  consent  to  the  court,  the  complainant  may 
have  a  special  ordei",  founded  thereon,  directing  the  bill  to  be 
taken  as  confessed  against  the  debtor,  and  referring  it  to  such 
master  as  the  court  may  designate  in  such  order,  to  appoint  a 
receiver,  with  the  usual  powers,  and  to  take  from  him  the  re- 


CHANCERY  RULES.  Ixvii 

quisite  security.     The  order  shall  also  direct  the  defendant  to  whattheor- 

{•  111-  '''"'  °''  *^''"" 

assign,  transfer,  and  deliver  over  to  the  receiver,  on  bath,  un- ^cm  musi 


contain. 


der  the  direction  of  the  master,  all  his  property,  equitable  in- 
terests, things  in  action,  and  eflects;  and  that  he  appear  before 
the  master,  from  time  to  time,  and  produce  such  books  and  pa- 
pers, and  submit  to  such  examination  as  the  master  shall  di- 
rect, in  relation  to  any  matter  which  he  might  have  been  le- 
gally required  to  disclose,  if  he  had  answered  the  bill  in  the 
usual  manner.  The  expense  of  taking  down  such  examination 
by  the  master,  shall  be  paid  by  the  complainant,  in  the  first  in- 
stance, and  may  be  taxed  and  allowed  to  the  latter  as  a  part 
of  his  necessary  costs  in  the  suit.  The  complainant  shall  also 
be  at  liberty  to  examine  witnesses  before  the  master,  as  to  the 
property  of  the  defendant,  or  as  to  any  other  matter  charged 
in  the  bill  and  not  admitted  by  the  defendant  on  such  exami- 
tion.     And  the  complainant  shall  cause  a  written  or  printed  copy  of  rule 

^  and  notice  to 

copy  of  this  rule  to  be  served  on  the  defendant  at  the  time  of  |he ^defend"" 
the  service  of  the  subpunna,  with  a  notice  to  the  defendant  that  answer?" 
an  entry  of  his  appearance  and  an  answer  on  oath  is  required;  ''*^''""■^''• 
or  such  defendant  shall  not  be  answerable  to  the  complainant 
for  the  costs  of  the  proceedings  to  compel  an  appearance  and 
answer. 

Where  a  defendant  lias  heen  examined  on  oath  l)efore  a  master,  upon  a  reference  to  appoint 
a  receiver  upon  a  creditor's  bill,  his  examination  m.iy  be  given  in  evidence  by  the  adverse  par- 
ty, upon  the  liearing  of  the  cause,  to  contradict  tlie  defendant's  answer.  Gihon  vs.  Albert,  7 
Faige  R.,  278. 

Under  the  usual  ordiT  to  appoint  a  receiver  upon  a  creditor's  bill,  the  defendant,  although  lie 
denies  on  oath  that  he  has  any  properly,  Is  bound  to  execute  to  the  receiver  a  formal  a.ssignment 
of  all  his  property,  equitable  interests,  and  choscs  in  action,  as  direcled  by  the  order;  to  enable 
the  receiver  to  lest  the  validity  of  any  assiffnment  or  other  disposition  which  llic  defendant  may 
have  made  of  his  property  or  effects.     Chipman  vs.  Sabhaton,  7  Paige  It ,  17. 

RULE  112. 

Every  receiver  of  the  property  and  elTects  of  the  debtor,  The  receiv- 
er's powers 
appointed  in  a  suit  upon  a  cred-tor's  bill,  shall,  unless  restricted  and  duties. 

by  the  special  order  of  the  court,  have  general  powei  and  au- 
thority to  sue  for  and  collect  all  the  debts,  demands  and  rents 
belonging  to  such  debtor,  and  to  compromise  and  settle  all  such 
as  are  unsafe  and  of  a  doubtful  character.     He  mav  also  sue 


Ixviii  CHANCERY  RULES. 

in  the  name  of  the  debtor,  where  it  is  necessary  or  proper  for 
him  to  do  so,  and  he  may  apply  for  and  obtain  an  order,  of 
course,  that  the  tenants  of  any  real  estate  belonging  to  the 
debtor,  or  of  which  he  is  entitled  to  the  rents  and  profits,  at- 
torn to  such  receiver  and  pay  their  rents  to  him.  He  shall 
also  be  permitted  to  make  leases  from  time  to  time,  as  may  be 
necessary,  for  terms  not  exceeding  one  year.  And  it  shall  be 
his  duty,  without  any  unreasonable  delay,  to  convert  all  the 
personal  estate  and  effects  into  money;  but  he  shall  not  sell 
any  real  estate  of  the  debtor  without  the  special  order  of  the 
Receiver  not  court.     He  is  not  to  be  allowed  for  the  costs  of  any  suit 

allowed 

cosisincer-  brought  bv  him  against  an  insolvent  from  whom   he  is  unable 

tain  cases.  o  J  o 

to  collect  his  costs,  unless  such  suit  is  brought  by  order  of  the 

court,  or  by  the  consent  of  all  persons  interested  in  the  funds 

Receiver      in  his  hands.     But  he  may  sell  such  desperate  debts,  and  all 

may  sell  bad  •'  '■ 

debts  at  auc-  Qthor  doubtful  claims  to  personal  property,  at  public  auction, 
giving  at  least  ten  days'  notice  of  the  time  and  place  of  such 
sale. 

The  answer  of  a  defendant  to  a  creditor's  bUl,  that  he  has  not  property  to  the  amount  of  one 
hundred  dollars,  is  not  a  full  defence  to  the  suit,  zjor  a  sufficient  reason  for  reftising  to  appoint 
a  receiver.    Fitzkugh  vs.  Everingham,  C  Paige  R.,  23. 

Afler  a  bill  has  been  taken  as  confessed  against  the  defendant  for  want  of  appearance,  an 
application  for  the  appointment  of  a  receiver,  or  for  an  injunction  or  ne  exeat,  against  the  de- 
fendant may  be  made  ex  pane,  and  without  notiae  thereof  to  him.  Austinvs.  Frigueira,1  Paige 
R.,  56. 

The  complainant  in  a  creditor's  bill  may  apply  for  the  appointment  of  a  receiver,  after  Uie 
service  of  the  subpoena  and  before  the  time  limited  by  the  rules  of  Uie  court  for  the  defendant's 
appearance  has  expired ;  but  in  that  case  notice  of  the  application  must  be  served  upon  the  de- 
fendant.   Idem.  . 

Where  separate  judgments  have  been  obtained  against  the  drawer  and  endorser  of  a  note, 
both  may  be  joined  in  one  creditor's  bill.    Idem. 

RULE  113. 

The  recei-  Where  several,  bills  are  filed  by  different  creditors  against 
whifre"evL  the  samc  debtor,  no  more  than  one  receiver  of  his  property 
med.  ^  ^"^^  and  effects  shall  be  appointed,  unless  the  first  appointment  has 
been  obtained  by  fraud  or  collusion,  or  unless  the  I'eceiver  is 
an  improper  person  to  execute  the  trust.  The  receiver  shall 
give  security  suflicient  to  cover  the  whole  property  and  effects 
of  the  debtor,  which  may  come  into  his  hands  by  virtue  of  his 
office;  and  he  shall  hold  such  property  and  effects  for  the  be- 


CHANCERY  RULES.  Ixix 

nefit  of  all  creditors  who  have  commenced  or  shall  commence 
similar  suits  during  the  continuance  of"  his  trust,  to  be  disposed 
of  according  to  their  legal  or  equitable  priorities.     He  shall  ,^^pay  ov^"'^ 
not  pay  over  the   funds   in  his  hands  to  the   parties  or  to  any  hem^char-" 

....  ...  1         •        1  1  1        gcd  wiihoul 

Other  person,  without  bemg  specially  authorized   to   do  so  by  special  or- 
an  order  or  decree  of  the   court;  nor  shall  he   be    discharged 
from  his  trust  without  a  special  order,  to  be   obtained  upon  a 
written  consent  of  all  the  parties  interested  in  the  property  in 
his  hands,  or  upon  due  notice  of  the  application. 

A  receiver  is  entiiled  to  notice  of  an  application  lo  discharge  him  from  his  office  as  such  re- 
ceiver.    AUorney  General  vs.  The  Haberdasher's  Co.,  2  Lond.  Jurist,  916. 

Where  property  is  rightfull.v  in  the  hands  of  a  receiver,  it  is  In  the  custody  of  the  court,  and 
any  person  who  takes  the  property  out  of  the  possession  of  the  receiver,  without  permission  of 
the  court,  after  he  has  notice  of  the  character  in  which  such  possession  is  held,  is  guilty  of  a  con- 
tempt.    Noe  vs.  Gibson,  7  Paige  R.,  51o. 

RULE  114. 

When  another  suit  is  commenced,  after  the  appointment  of  Thereceiver 

*  '  to  keep  sepa- 

a  receiver,  the  same  person  may  be  appointed  receiver  of  such  [^^^^l' 
subsequent  suit,  and  shall  give  such  further  security  as  the 
court  shall  direct.  He  shall  keep  a  separate  account  of  any 
property  or  effects  of  the  debtor  which  may  have  been  ac- 
quired since  the  commencement  of  the  first  suit,  or  which  may 
be  assigned  to  such  receiver  under  the  appointment  in  the  last 
cause. 

RULE  115. 

No  injunction  issued  upon  any  such  creditor's  bill,  shall  be  con-  ]f;^^,'j^j*?^n*'^ 
strued  to  prevent  the  debtor  from  receiving  and  applying  the  t"r^s")iiia!^'' 
proceeds  of  his  subsequent  earnings  to  the  support  of  himself 
or  of  his  family,  or  to  defray  the  expenses  of  the  suit,  or  to 
prevent  him  from  complying  with  any  order  of  this  court, 
made  in  any  other  cause,  to  assign  and  deliver  his  property 
and  effects  to  a  receiver,  or  to  restrain  him  from  making  the 
necessary  assignment  to  obtain  his  discharge  under  the  insol- 
vent laws,  unless  an  express  provision  to  that  effect,  is  contain- 
ed in  the  injunction. 


Ixx  CHANCERY  RULES. 

RULE  116. 

orriersupon      When  two  Or  more  special  motions  or  applications  in  the 

special  mo- 
tions decided  same  suit,  are  decided  at  the  same  time,  or   on  the   same  day, 

at  the  same  '  '  »  ' 

emere(?io-  O'"  Several  directions  are  given  by  the  court  in  relation  to  the 
^''"^''        suit,  the  whole  shall  be  entered  together  as  one  order,  unless 

the  court  shall  otherwise  direct.  And  when  a  party  is  enti- 
ordexfo'?"'^^  tied  to  enter  two  or  more  orders,  of  course,  in  a  suit  at  the 
certoin'cases,  samc  time  or  on  the  same  day,  they  shall  be  entered  together 
as  one  order,  as  ouc  Order;  and  he  shall  only  be  allowed,  upon  the  taxation 

of  costs,  for  the  expense  of  entering  one  order. 

AVhere  several  applications  are  decided  at  the  Siimc  time,  if  the  party  who  draws  up  the  or- 
der omits  to  s;ate  therein,  a  part  of  the  directions  of  the  court,  which  were  given  on  some  of 
tlie  applications,  tlie  adverse  party,  instead  of  entering  a  separate  order,  should  propose  amend- 
ments to  the  first  order,  as  drawn  up,  or  should  apply  to  have  such  order  corrected,  so  as  to 
embrace  the  whole  directions  of  the  court.    Hunt  vs.  Wallis,  6  Paige  R.,  371. 

RULE  117. 

Customary        Jn  cascs  whcro  no  provision  is  made  by  statute  or  by  these 

practice  of  *  j  ,/ 

gove°nTnMi-  Tulcs,  the  procccdings  of  this  court  shall  be  according  to  the 
otherwise  customary  practice,  as  it  has  heretofore  existed,  in  cases  not 
provi  e  or.  p^.^^^^^^  f^j,  ]jy  gtatutc  Or  by  the  written  rules  of  the  court. 

These  rules  shall  commence  and  take  effect  on  the  first  day  of 
January,  A.  D.  1839;  from  and  after  which  time,  all  former 
rules  and  orders  of  this  court,  regulating  the  practice  thereof, 
are  abolished. 

The  following  rule  was  adopted  January  19,  1841. 

RULE  118. 

Before  any  officer  or  party  claiming  costs  or  fees,  taxable  in 
this  court,  shall  be  entitled  to  demand  payment  thereof,  such 
costs  or  fees  shall  be  taxed  by  a  taxing  officer  of  this  court; 
but  no  officer  whatever  shall  tax  his  own  costs  or  fees.  The 
same  notice  of  taxation  shall  be  given  to  the  party  to  be 
charged  therewith,  if  such  party  has  appeared  in  the  cause  or 
proceedings,  as  is  required  by  the  seventy-second  rule  of  this 
court. 


CASES  IN  CHANCERY. 


CASES  IN  CHANCERY. 


JuBA  Barkows  and  others  vs.  Ellis  Doty. 


The  Court  of  Chancery  will  not  Lake  jurisdiction  of  a  case  where  there  is  a  plain  iind  adequate  First  Circuit, 
remedy  at  law. 


A  party  v.'Jio  hasi  a  defence  at  law,  of  which  he  is  advised,  and  neglects  to  make  ii,  conies  loo      Barrows 
late  to  this  court  to  ask  to  be  relieved  against  the  judgment.  Doty. 

The  bill  in  this  case  was  filed  in  the  circuit  court  of  the  coun- 
ty of  Wayne,  February  7th,  1837,  before  the  organization  of 
the  court  of  chancery,  and  afterwards  was  transferred  to  this 
court. 

The  bill  stated  that  in  the  month  of  February,  1834,  Juba 
Barrows  being  under  a  pressing  necessity  for  money,  made 
his  wants  known  to  one  Charles  Tryon,  who  said  he  expected 
to  have  money  put  into  his  hands  by  another  person  to  loan, 
which  other  person  Barrows  understood  to  be  Ellis  Doty; 
that  soon  afterwards  Tryon  did  actually  loan  to  Barrows  $44, 
for  which  he  gave  his  two  several  promissory  notes  for  #33, 
each  payable  in  90  days  to  Tryon  or  bearer^  which  notes 
were  signed  by  Thomas  Palmer  and  John  Howard  as  securi- 
ties; that  it  was  at  the  time  agreed  between  Barrows  and 
Tryon  that  if  Barrows  should  pay  $50,  when  the  notes  be- 
came due,  it  was  to  be  received  in  full  satisfaction  thereof, 
and  if  not  paid  at  that  time,  Barrows  should  pay  the  amount 
of  $50,  with  four  per  cent,  per  month,  from  the  time  the  same 
became  due;  that  Tryon  afterwards  became  indebted  to  Bar- 
rows in  the  sum  of  $20,  which  Tryon  agreed  to  endorse  on 
the  notes;  that  when  the  notes  became  due,  Barrows  called 

Vol,.  I.  1 


Barrows 

vs. 
Doty. 


3  CASES  IN  CHANCERY. 

First  Circuit,  on  Try  Oil  several  times  with  the  money  to  pay  the  notes,  and 
he  made  excuses  that  he  could  not  attend  to  it  then,  saying  a 
few  days  would  make  no  difference,  and  on  one  occasion  said 
the  notes  were  at  Judge  Doty's;  that  Doty  afterwards  told 
Barrows  that  he  held  the  notes  and  that  payment  was  to  be 
made  to  him;  that  he  took  the  notes  for  the  face  of  them,  and 
refused  to  allow  the  $20  which  Tryon  had  agreed  to  endorse; 
that  BarroAvs  offered  then  to  pay  the  same  if  Doty  would  de- 
duct the  #20,  which  he  refused  to  do. 

That  Doty  afterwards  recovered  judgments  on  the  notes  for 
the  full  amount  of  the  face  of  the  same,  and  was  about  to  take 
out  execution. 

The  bill  further  alledged  that  Barrows  had  always  been  rea- 
dy and  willing,  and  still  was  ready  and  willing,  to  pay  the 
actual  amount  of  money  loaned,  with  legal  interest  thereon, 
and  prayed  for  an  injunction  to  restrain  the  collection  of  the 
judgments.     An  injunction  was  granted  January  2,  1835. 

A.  D.  Fkazer,  Solicitor  for  Ellis  Doty,  moved  to  dissolve 
the  injunction  and  to  dismiss  the  bill  for  want  of  equity. 

H.  Chipman,  Solicitor  for  complainant,  opposed  the  mo- 
tion. 

The  Chancellor. — This  bill  cannot  be  sustained,  for  the 
usury  was  a  good  defence  at  law,  and  Tryon  being  the  agent 
who  negotiated  the  loan,  must  have  known  all  the  facts,  and 
might  have  been  called  as  a  witness. 

The  complainants  have  suffered  judgments  to  be  taken  on 
the  notes,  with  a  knowledge  of  all  the  facts,  without  making 
their  defence,  and  they  come  too  late  to  this  court  to  ask  to 
be  relieved  against  those  judgments.  {See  Thompson  vs.  Ber- 
i-y  &f  Van  Buren,  3  /.  C.  R.,  395.  Lansing  vs.  Eddy,  1  /.  C. 
R.,  49.)  The  injunction  must  be  dissolved  and  the  bill  dis- 
missed.* 

Bill  dismissed. 


'  See  Wright  »».  King,  page  12. 


CASES  IN  CHANCERY.  3 


Thomas  Rowland  vs,  Ellis  Doty  and  others. 

It  is  a  general  rule,  that  wlicre  ihc  bill  prays  relief  to  which  the  complainant  is  entitled,  and  First  Circuit. 

whicli  cannot  be  luul  at  law,  it  is  sufficient  to  give  the  court  of  chancery  jurisdiction  of  the  ^.^^V^^fc^ 

cause.  Rowland 

rs. 
The  20rh  section  of  ihc  act  of  1S33,  (laws  of  Michifran,  pajje  358,)  gives  this  <ourt  express  au-        Doty. 

tliorily  to  inquire  into  aii<I  settle  conflictin;;  claims  of  title  to  land. 

The  ri?ht  to  sell  lands  for  taxes,  under  the  act  of  1827,  (laws  of  Michigan,  page  377,)  is  founded 
on  the  fact  of  the  non-payment  of  the  lax,  and  a  sale  made,  after  the  tax  has  l)cen  paid,  is  un- 
authorized, and  the  treasurer's  deed  on  such  sale  conveys  no  estate  or  tiUe  whatever. 

The  collector's  return  that  the  tax  has  not  been  paid,  is  such  evidence  only  of  non-payment  as  to 
justify  the  treasurer  in  selling;  and  the  treasurer's  deed  on  such  sale  is  "  conclusive  evidence" 
only  of  the  fact  that  the  sale  by  him  was  regular  according  to  the  provisions  of  the  act. 

A  parly  claiming  to  have  paid  the  lax  before  sale,  is  not  precluded  by  the  treasurer's  deed,  but 
may  go  behind  it  and  show  that  fact. 

The  bill  in  this  case  set  forth  and  alledged  that  Thomas 
Rowland  was,  in  the  year  1822,  owner  in  fee  simple,  of  lot 
number  59,  in  section  number  8,  in  the  city  of  Detroit;  that 
he  continued  the  owner  and  possessor  of  said  lot  up  to  the 
time  of  the  filing  of  the  bill,  and  made  permanent  improvements 
on  the  same  to  the  value  of  $1,000.  That  all  the  township  and 
county  taxes  assessed  on  said  lot  had  been  paid  by  him  from  the 
year  1822,  up  to  the  time  of  filing  the  bill.  That  a  few  days 
before  the  filing  of  the  bill,  he  was  informed  for  the  first  time, 
that  Peter  Desnoyers,  the  former  treasurer  of  the  county  of 
Wayne,  pretended  to  sell  said  lot  on  the  third  day  of  October, 
1831,  for  the  taxes  pretended  to  be  due  thereon  for  the  year 
1828,  to  one  Rufus  Wilson.  In  the  year  1833,  one  David 
French,  (who  was  the  successor  to  Desnoyers  in  the  office  of 
treasurer  of  said  county,)  executed  a  fee  simple  conveyance 
of  said  lot  to  said  Wilson  and  acknowledged  the  same  accord- 
ing to  law.  Wilson  conveyed  to  Ellis  Doty,  and  Doty  had  ap- 
plied to  Theodore  Williams,  register  in  the  city  of  Detroit,  to 
have  the  deed  from  French  to  Wilson,  recorded. 

The  bill  further  stated,  that  Rowland  had  paid  the  taxes  on 
said  lot  for  the  year  1828,  and  that  he  then  held,  in  his  posses- 
sion, the  receipt  of  Abraham  C.  Canniff,  bearing  date  October 


4  CASES  IN  CHANCERY, 

First  circuit.  21,  1828,  by  which  said  Canniff,  who  was  then  collector  for  the 
Rowland    township  and  city  of  Detroit,  acknowledged  to  have  received 
Dot'y.      from  Rowland,  the  sum  of  $21  71,  being  the  amount  of  Row- 
land's county  tax  for  said  county  for  the  year  1828,  and  also 
the  further  sum  of  $6  78,  being  the  amount  of  the  township 
and  city  tax  for  said  year. 

The  bill  further  alledged,  that  Rowland,  being  in  possession 
of  said  lot,  was  unable  to  divest  said  Doty  of  his  pretended 
title  to  the  same  by  an  action  of  ejectment  or  any  other  pro- 
cess of  law  whatever,  and  prayed  that  the  deed  from  French 
to  Wilson  might  be  decreed  to  be  given  up  to  be  cancelled,  as 
also  all  pretended  conveyances  from  Wilson  to  Doty,  and  that 
said  Vv^ilson  and  Doty  assign  all  their  supposed  right  to  said 
lot  to  Rowland;  and  also  prayed  for  an  injunction  to  restrain 
Wilson  and  Doty  from  incurbing  the  title  to  said  lot,  and  to 
restrain  Williams  from  recording  said  deed. 

The  bill  was  taken  as  confessed  as  against  all  the  defendants 
except  Wilson,  who  answered  and  disclaimed,  and  Doty,  who 
demurred.  A  motion  was  also  made  to  dissolve  the  injunc- 
tion for  want  of  equity. 

A.  D.  Frazer,  in  support  of  the  demurrer  and  motion  to  dis- 
solve. 

It  is  urged  by  the  defendant  that  the  injunction  in  this  case 
be  dissolved  for  want  of  equity  in  the  bill,  in  as  much  as  the 
complainant  has  full  and  adequate  remedy  at  law,  and  no 
ground  is  suggested  in  the  bill  to  give  this  court  jurisdiction. 

The  legality  or  validity  of  the  treasurer's  deed  is  the  ques- 
tion necessarily  raised  in  this  case.  It  is,  therefore,  properly 
examinable  at  law.  Whether  the  requirements  of  the  act  to 
provide  for  the  assessment  and  collection  ©f  taxes  have  been 
complied  with;  and  how  far  it  is  necessary  for  the  defendant 
to  show  compliance,  are  questions  depending  upon  the  statute, 
(^ee  Laws  of  1827,  page  377,)  and  to  be  adjudicated  in  an  ac^ 
tion  of  ejectment. 

Where  a  cause  depends  simply  on  the  solution  of  a  legal 
question,  the  proper /orwrn  for  the  determination  of  that  ques- 
tion, is  a  court  of  law;   nor  will  this  court  interfere  in  a  mat- 


CASES  IN  CHANCERY.  5 

ter  where  relief  can  be  had  either  by  qito  waiTanio  or  manda-  i'r*i*'ifeuit- 
mus.     [Jittomey  General  vs.  Utica  Ins.  Co.,  2  J.  C.  R.,  376;  20    i{„„.i.,„j 
Ves.  199.)  Dou. 

W.  WooDBP.iDGE,  contra. 

The  demurrer  concedes  all  the  facts  stated,  consequently 
that  the  proprietor  was  a  resident  proprietor,  and  that  the  pro- 
perty was  assessed  as  the  property  of  a  non-resident,  as  well 
as  the  irrecularitv  charcred. 

The  mode  of  collecting  a  tax  from  a  non-resident  is  varient 
from  that  prescribed  for  a  resident.  In  the  latter  case  the  col- 
lector must  proceed  by  distress  upon  the  personal  property; 
in  the  former  case  the  tax  can  only  be  enforced  by  sale  of  the 
land. 

It  is  legally  impossible  that  the  land  of  a  resident  proprietor 
should  be  sold  and  thus  lost,  if  there  were  personal  property 
upon  which  distress  might  be  made;  and  the  sworn  return  of 
the  collector  is  the  only  evidence  there  could  be  that  there  was 
no  personal  property.  Thus  bringing  this  case  almost  within 
the  very  words  of  the  case  of  Cox  vs.  Grant,  1  Yates,  165,  and 
also  of  Stead  vs.  Course,  4  Cranch,  413,  414. 

In  order  to  give  effect  to  a  collector's  deed,  every  minute 
particular  of  the  statute  must  have  been  shown  to  have  been 
complied  with.     (1  Yaies,  300;   Chip.  R.  81;  4  Munf.,  434.) 

A  collector  has  no  p-eneral  authority  to  sell  lands  at  his  dis- 
cretion;  but  a  special  naked  power  to  sell  in  certain  specified 
events;  and  the  pre-requisites  must  precede  the  deed.  The  va- 
lidity of  the  deed  then  finally  depends  upon  matter  in  pais,  and 
this  matter  77iust  be  shown.  {Williains  vs.  Pay  ton,  4  Wheat.  ^ 
79,  80.) 

If  the  lots  are  not  assessed  in  the  name  of  the  true  owner, 
for  example,  the  sale  is  void.  (8  Wheat.,  083,  684;  1  Munf., 
423.)  The  lots  must  be  definitely  and  properly  described. 
(4  Peters,  362,  363,  364;)  or  the  sale  is  void.  {Vide  3  Ohio 
Rep.,  233,  234.)  In  the  case  of  Thompson  vs.  Gardner,  10 
John.  R.,  405,  the  court  say:  "It  would  be  an  alartning  doc- 
trine to  say  that  the  collector  might  sue  immediately  every 
person  upon  his  assessment  roll."     It  would  be  far  more  alarm- 


6  CASES  IN  CHANCERY. 

i-irBtcireii:t.  jpg  jf  \^q  could  scll  all  0.  man's  farm  without  suit,  at  his  discre- 

uowi.in,!    ^ion,  and  without  a  regular  assessment,  advertisement,  &c. 

Doty.  The  contrary  is  the  law;  even  the  excess  oi  Jive  cents  in  the 

whole  amount  of  a  tax  list,  vitiates  the  whole  proceedings  and 

the  collector  is  a  trespasser.     (2  Greenleaf  Rep.,  375.)     "For 

if  the  strict  rule  of  the  law  be  overleaped  there  is  no  limit." 

The  Virginia  statute  provides  that  if  the  tax  on  land  re- 
mains unpaid  three  years,  the  title  thereof  shall  vest  in  the 
state;  by  a  separate  provision  the  collector  is  required  to  dis- 
train if  there  be  personal  property,  and  he  is  required  to  re- 
turn to  the  county  court  a  report,  sworn  to,  of  his  proceed- 
ings; yet  a  sale  by  the  state  is  utterly  void  unless  the  officer 
or  purchaser  prove  fully  all  the  proceedings;  distress,  adver- 
tisement, assessment,  description,  ownership  and  sale;  other- 
wise, says  Judge  Tucker,  it  would  be  against  the  principle  of 
Magna  Charta.     (2  Hen.  8^  Munf.,  328.) 

Not  only  is  a  literal  and  exact  compliance  with  the  statu- 
tory provisions  requisite,  but  the  statute  itself  receives  a  very 
5^nc^ construction.  (9  Cranch,  67;  Parker  \s.  Rule,  8  Wheat., 
682;  5  Ohio  Rep.,  369;  4  Munf.,  431.) 

The  claim  of  the  defendants  being  thus  bad  at  law,  the  com- 
plainant has  a  full  right  to  come  into  chancery  to  have  the  in- 
valid deed  cancelled,  and  the  doubts  thrown  upon  his  title  re- 
moved and  that  title  quieted;  things  which  a  law  court  cannot 
do. 

This  case  is  not  distinguishable  from  that  of  Yancey  vs.  Hop- 
kins, 1  Munf.,  419,  426,  428.  The  assessment  was  in  that  case 
found  to  be  irregular,  and  a  cancelling  of  the  collector's  deed, 
and  also  a  re-conveyance  by  release  were  decreed.  Nor  can 
this  case  be  distinguished  from  the  case  of  the  Corporation  of 
Washington  [on  appeal)  vs.  Pratt,  8  Wheat.,  682.  There  had  in 
that  case  been  an  irregular  assessment,  and  the  city  lots  had 
been  actually  sold  for  taxes.  Pratt  brought  his  bill  against  the 
corporation,  and  averred  the  irregularity  of  the  assessment  and 
proceedings,  and  prayed  an  injunction.  The  sale  was  declared 
void,  and  the  city  of  Washington  perpetually  enjoined  against 
issuing  a  deed  to  the  purchaser. 


CASES  IN  CHANCERY.  7 

This  case  is  strikingly  similar  in  its  fealures  to  the  case  of  ^''"'^''"'""• 
Burnett  vs.  Cincinnati,  3  Ohio  Rep.,  86.  In  that  case,  likewise, 
there  was  an  irregular  assessment,  and  the  tax  not  being  paid, 
the  collector  was  about  proceeding  to  sell  for  the  tax,  when 
the  complainant  obtained  an  injunction.  The  decree  of  the 
court  was  a  perpetual  injunction  against  the  threatened  sale. 

In  all  these  three  leading  cases,  the  point  of  jurisdiction  was 
either  made,  debated  and  overruled,  or  else  made  and  (as  in 
8  Wheat.,  682)  given  up  by  counsel.  (See  also,  5  Ohio  Rep., 
679;  2  Paige,  436.) 

The  Chancellor.  The  first  question  that  arises  in  this 
case  is,  as  to  the  jurisdiction  of  this  court. 

As  a  general  rule,  where  the  bill  prays  relief,  to  which  the 
complainant  is  entitled,  and  which  cannot  be  had  at  law,  it  is 
sufficient  to  give  this  court  jurisdiction  of  the  cause. 

The  bill  in  this  case,  after  stating  that  the  complainant  had 
paid  the  tax  for  which  the  lot  was  sold,  and  being  in  posses- 
sion, was  unable  to  divest  Doty  of  his  pretended  title  to  the  lot 
by  action  of  ejectment,  or  any  other  process  at  law  whatever, 
prays  that  the  deed  from  French  to  Wilson  may  be  delivered 
up  to  be  cancelled,  as  also  the  conveyance  from  Wilson  to 
Doty.  It  also  prays  that  Wilson  and  Doty  may  be  compelled 
to  assign  their  claim  to  the  complainant,  and  for  an  injunction 
to  restrain  them  from  incumbering  the  title  to  the  lot,  and  to 
restrain  Williams  from  recording  the  deed  from  French  to 
Wilson. 

Is  it  competent  for  this  court  to  afibrd  any  part  of  the  relief 
prayed.     Most  surely  it  is. 

The  jurisdiction  of  this  court,  (exclusiveof  any  statutory  pro- 
vision upon  the  subject,)  to  set  aside  deeds  and  other  legal  in- 
struments which  are  a  cloud  upon  the  title  to  real  estate,  and 
to  order  them  to  be  delivered  up  to  be  cancelled,  is  fully  estab- 
lished. Petit  vs.  Shepard,  5  Paige,  493;  Hamilton  vs.  Cxim- 
mings,  \  J.  C.  R.,  517;  Apthorp  vs.  Covistock,  2  Paige,  482; 
Grovei'  vs.  Hugell,  3  Russ.  Ch.  Reports,  432;  IVard  vs.  Ward, 
2  Hayw.  R.,  226;  Leigh  vs.  Everharts  Ex'rs,  4  Munro  R.,  380; 
Hamkshaw  vs.  Parkins,  2   Swanst.  R.,  546,  1  Munf.  R.,  419; 


8  CASES  IN  CHANCERY. 

F.rst  Circuit  BumeUvs.  Corporation  of  Cincinnati,  3  Ohio  R.,  87;  JMitford's 
PL,  87;  and  there  can  be  no  question  that  there  is  sufficient 
stated  in  the  bill  to  bring  the  case  within  the  jurisdiction  of 
this  court. 

But  the  act  to  prescribe  the  mode  of  proceeding  in  chancery 
of  1833,  [laws  of  Michigan^  358,  sec.  29,)  provides  "  that  any 
person  having  the  possession  and  legal  title  to  land,  nnay  insti- 
tute a  suit  against  any  other  person  or  persons  setting  up  a  claim 
tiiereto;  and  if  the  claimant  shall  be  able  to  substantiate  his 
title  to  such  land,  the  defendant  shall  be  decreed  to  release  to 
the  complainant  all  claim  thereto,  and  to  pay  the  costs,"  &c., 
and  the  bill  in  this  case  is  framed  to  come  within  the  provi- 
sions of  this  section. 

The  facts  set  forth  in  the  bill  are  admitted  by  the  demur- 
rer. 

The  question  then  is,  does  the  treasurer's  deed  to  Wilson, 
divest  Rowland  of  his  title;  and  is  Rowland  precluded  by  that 
deed  from  showing  that  the  tax  had  been  paid  for  which  the 
lot  was  sold? 

By  the  13th  section  of  the  "act  to  provide  for  the  assess- 
ment and  collection  of  township  and  county  taxes,"  [Laws  of 
1827,  page  370,)  the  tax  is  declared  to  be  a  lien  on  the  land; 
and  if  such  tax  is  not  paid  within  a  certain  time,  the  treasurer 
is  authorized  to  sell.  The  right  to  sell  is,  therefore,  founded  on 
the  fact  of  the  non-payment  of  the  tax.  If  the  tax  be  paid 
before  the  sale,  that  lien  is  discharged,  and  the  right  to  sell  no 
longer  exists. 

But  it  is  said  the  treasurer's  deed  is  conclusive  upon  this 
point. 

The  14th  section  of  the  act  provides,  ''that  the  treasurer 
shall,  at  the  expiration  of  the  said  two  years,  execute  to  the 
purchaser,  his  heirs  or  assigns,  a  conveyance  of  the  lands  so 
sold,  which  conveyance  shall  vest  in  the  person  or  persons  to 
whom  it  shall  be  given  an  absolute  estate  in  fee  simple,  sub- 
ject to  all  the  claims  which  the  territory  of  Michigan  shall 
have  thereon,  and  the  said  conveyance  shall  be  conclusive  cvi- 


CASES  IN  CHANCERY.  9 

dence,  that  the  sale  was  regular  according  to  the  provisions  of  F'fstcircuu. 

this  act.  Rowland 

The  conveyance  from  the  treasurer  vests  an  "absolute  es-  Doty, 
tate  in  fee  simple"  only  where  the  proceedings  throughout 
have  been  regular.  The  right  to  sell  being  founded  solely  on 
the  non-payment  of  the  tax,  does  not,  and  cannot  exist  when- 
ever the  tax  has  been  paid.  A  sale  thei-efore,  when  no  tax  is 
in  fact  due,  is  unauthorized,  and  the  treasurer's  deed  on  such 
unauthorized  sale,  conveys  no  estate  or  title  whatever. 

The  return  by  the  collector  that  the  tax  has  not  been  paid, 
is  such  evidence  of  non-payment  07i/y  as  to  justify  the  trea- 
surer in  selling;  and  his  conveyance  on  such  sale  is  not  "con- 
clusive evidence"  that  all  the  pre-requisites  have  been  com- 
plied with,  but  is  only  conclusive  evidence  that  the  saJe  by  him 
icas  regular  according  to  the  provisions  of  the  act. 

And  this  was  the  construction  given  to  the  New  York  sta- 
tute (which  was  substantially  the  same  as  ours)  in  the  case  of 
Jackson  vs.  Montis.  18  Johns.  Rep.,  441. 

Could  the  legislature  have  intended  that  a  party  who  had 
performed  all  his  duties  to  the  public,  should  be  deprived  of 
his  property  in  this  way?  Was  it  not  intended  to  operate  up- 
on those  who  should  not  pay  their  taxes,  and  not  upon  those 
who  have,  and  thus  have  i)crformed  all  their  obligations?  The 
obligation  is  reciprocal:  if  the  citizen  performs  his  duties  to 
the . government,  the  government  should  perform  its  duties  to 
him.  Among  the  first  of  these  is  protection  in  his  property; 
it  should  not  be  taken  from  him  by  the  government  or  its 
agents  without  any  fault  or  omission  of  duty  on  his  part. 

It  is  provided  by  the  statute  of  Ohio,  that  "the  deed  made 
by  the  county  auditor,  as  hereinbefore  specified,  shall  be  recei- 
ved in  all  courts  as  p?"zma  facia  evidence  of  a  good  and  valid 
title  in  the  purchaser,"  &c. 

In  the  case  of  the  Lessees  of  Carlisle  vs.  Longivorth,  5  Ohio 
R.,  374,  the  supreme  court  say:   "the  legislature  do  not  say 
a  deed  made  by  the  county  auditor  '  shall  be  received  as  prima 
facia  evidence  of  a  good  and  valid  title,'  but  the  deed  ^  as  here- 
inbefore specified,'  in  other  wordS;  the  deed  made  by  the  auditor 
Vol.  I.  2 


10  CASES  IN  CHANCERY. 

First  dircuit.  j^  pursuance  of  this  act.     This  is  the  manifest  intention.     Un- 

""^^^^^  less  it  is  made  in  pursuance  of  the  act,  it  is  made  without  au- 

DoV      thority  and  is  void;  but  if  made  in  pursuance  of  the  act,  it  is 

prima  facia  evidence  of  title."     And  in  this  case  it  was  held 

that  before  the  auditor's  deed  could  be  received  in  evidence,  it 

must  be  shown  that  he  had  authority  to  make  it. 

In  the  case  of  Steads  Ex'ts  vs.  Course,  4  Cranch  R.,  403,  it 
was  decided  that  it  was  incumbent  on  the  vendee  io  prove  the 
authority  io  sell. 

Chief  Justice  Marshall,  in  delivering  the  opinion  of  the 
court  in  that  case,  says:  "It  would  be  going  too  far  to  say 
that  a  collector  selling  land  with  or  without  authority,  could, 
by  his  conveyance,  transfer  the  title  of  the  rightful  proprie- 
tor." 

In  Rules,  Lessees  vs.  Parker,  1  Cooke  R.,  365,  it  was  held 
that  the  sale  of  lands  for  the  payment  of  taxes  being  a  sum- 
mary and  exti-aordinary  proceeding,  the  party  claiming  title 
under  such  proceeding,  must  show  that  all  the  requisites  that 
the  law  had  prescribed  to  guard  against  frauds  and  imposition 
have  been  complied  with. 

And  in  the  case  of  Williams  vs.  Peyton's  Lessees,  4  Wheat. 
R.,  77,  the  court  say,  that  where  there  is  a  naked  power  not 
coupled  with  an  interest,  every  pre-requisite  to  the  exercise  of 
that  power  should  precede  it;  and  that  where  lands  are  sold 
for  the  non-payment  of  taxes,  the  marshal's  deed  is  not  even 
prima  facia  evidence  that  the  pre-requisites  of  the  law  have 
been  complied  with;  but  the  party  claiming  under  it,  must 
show  positively  that  they  have  been  complied  with. 

These  cases  show  w^hat  the  general  rule  is  upon  this  sub- 
ject. 

It  is  not  necessary  in  this  case  to  decide  whether  it  is  in- 
cumbent on  the  party  claiming  title  under  the  treasurer's  deed 
to  show  affirmatively  the  regularity  of  the  proceedings,  and 
that  all  the  pre-requisites  to  the  sale  have  been  complied  with. 

The  complainant  alledges  in  his  bill  that  the  tax  for  which 
the  lot  was  sold,  had  been  paid  long  before  the  sale,  and  it 
would  be  a  monstrous  doctrine  for  this  court  to  hold  that  he 


CASES  IN  CHANCERY.  11 

is  precluded  by  the  treasurer's  deed,  and  cannot  go  behind  it  ^''■"<^'"""- 
to  show  that  fact.  n„„.i„„^ 

The  demurrer  must  be  overruled,  and  the  motion  to  dissolve      do'V. 
the  injunction,  denied. 


12  CASES  IN  CHANCERY. 


John  Wright  vs.  Jonathan  L.  King  and  others 

First  Circuit.  If  a  party  has  a  defence  at  law  of  which  he  is  advised  before  the  trial,  and  neglects  to  make  it, 
N^rvy-^fc^      or  to  apply  to  the  court  of  chancery  for  a  discovery,  if  necessary  to  his  defence,  in  aid  of  the 
Wright  trial  at  law,  he  is  precluded  and  cannot  afterwards  have  relief  in  tins  court. 

rs. 
King.         A  court  of  chancery  will  compel  a  discovery  in  aid  of  a  defence  at  law,  nor  can  there  be  a 

doubt  that  it  will  stay  proceedings  at  law,  until  an  answer  to  the  bill  for  discovery  can  be 

obtained. 
To  raise  a  trust  by  implication,  t'.icre  must  be  an  actual  payment  of  money. 
To  take  the  case  out  of  the  statute  of  frauds,  the  terms  and  conditions  of  the  trust  must  be  in 

writing  under  the  hand  of  the  party  to  be  charged. 

• 

The  bill  in  this  case  was  filed  11th  August,  1836,  and  stated 
that  in  the  year  1833,  the  complainant  and  defendant,  King, 
became  jointly  guarantors  of  and  upon  a  certain  promissory 
note  made  by  one  John  Collins  to  John  H.  Kinzie,  for  the  sum 
of  $212,  payable  in  60  days. 

That  Daniel  Goodwin  and  John  Hale,  (who  were  also  de- 
fendants,) were  securities  or  endorsers,  either  separately  or 
with  each  other,  or  with  King,  upon  other  notes  made  by  Col- 
lins— that  Collins  became  embarrassed  and  absconded  from 
the  state  without  leaving  any  property  or  making  any  arrange- 
ment for  the  payment  of  his  debts.  That  soon  after  Collins 
had  absconded,  John  Hendree,  (who  was  deceased  at  the  time 
of  filing  the  bill,)  informed  complainant  that  he  had  previously 
loaned  said  John  Collins  a  sum  of  money,  and  for  security  for 
the  payment  of  the  money  so  loaned,  James  Collins,  who  was 
brother  to  said  John  Collins,  had  executed  to  him  an  absolute 
deed  of  conveyance  of  two  certain  lots  of  land  in  the  city  of 
Detroit,  and  proposed  to  complainant,  if  he  would  pay  him  the 
money  he  had  loaned  Collins,  with  the  interest  and  proper 
charges,  that  he,  Hendree,  would  deed  said  lots  to  complainant, 
which  complainant  agreed  to  do.  That  complainant  immedi- 
ately applied  to  Henry  K.  Avery,  (who  was  deceased  at  the 
time  of  filing  the  bill,)  cashier  of  the  Farmers'  and  Mechanics' 
bank  of  Michigan,  for  a  loan  to  pay  Hendree  the  amount  of  his 
claim  against  Collins — that  Avery  agreed  to  loan  complainant 


CASES  IN  CHANCERY.  13 

the  amount  provided  he  would  pay  a  debt  of  about  S80,  due  f'f'**'^''":"'-- 
the  bank  by  said  Collins,  which  complainant  agreed  to  do  on     wrisia 
the  sale  of  the  lots.  Doty- 

During  the  pendency  of  the  negotiation  and  before  com- 
plainant had  obtained  the  loan  from  the  bank,  he  had  a  con- 
versation with  Goodwin  respecting  the  affairs  of  Collins  and 
the  liabilities  of  Goodwin,  Hale,  King  and  complainant  on  his 
account,  and  in  such  conversation,  complainant  disclosed  to 
Goodwin  the  arrangement  he  had  made  for  his  own  indemnity, 
and  stated  that  if  he,  Goodwin,  and  others  interested,  would 
pay  to  Hendree  the  amount  of  his  claim  and  would  satisfy  the 
claim  of  the  Bank  of  880,  and  would  also  pay  Jerry  Dean 
850  due  him  by  said  John  Collins,  and  discharge  complainant 
from  all  liabilities  on  said  John  Collins'  account,  and  on  the 
sale  of  the  lots,  after  discharging  the  debts  of  said  Collins  for 
which  Goodwin,  Hale  and  King  were  responsible,  pay  over 
the  residue  of  the  proceeds  of  said  lots  to  the  wife  of  said 
Collins,  that  complainant  would  relinquish  the  contract  made 
by  him  with  Hendree,  and  permit  the  same  to  enure  to  the  be- 
nefit of  said  Goodwin,  Hale  and  King. 

Shortly  after  this  conversation,  Goodwin  informed  com- 
plainant that  he  had  seen  Hale  and  King,  and  that  they  had 
agreed  to  accept  the  proposition  of  complainant,  and  the  con- 
veyance of  the  said  lots  was  to  Ii*^  made  to  Goodwin,  Hale 
and  King.  That  on  request  of  complainant  a  deed  of  con- 
veyance of  said  lots  was  executed  and  delivered  by  Hendree 
to  Goodwin,  Hale  and  King.  That  the  complainant,  relying 
on  the  good  faith  of  Goodwin,  Hale  and  King,  did  not  insist 
on  the  said  understanding  and  agreement  being  reduced  to 
writing,  or  on  security  on  their  part  for  its  fulfdlment. 

That  afterwards,  Goodwin  and  Hale  sold  or  disposed  of  their 
interest  in  the  said  lots  to  King,  and  King  sold  the  same,  or  a 
part  thereof,  for  about  $3,000,  which  sum,  the  bill  charged,  was 
amply  sufficient  not  only  to  pay  Hendree's  claim,  the  $80  due 
the  bank,  the  $50  to  Dean,  and  the  note  guaranteed  by  King 
and  complainant  to  Kinzie,  but  also  to  pay  and  satisfy  all  the 
demands  against  the  said  John  Collins  for  which  said  Good- 


14  CASES  IN  CHANCERY. 

First  Circuit,  ^j^,  Hafe  and  King  were  responsible,  and  leave  a  surplus  for 
Wright  the  wife  of  said  Collins.  The  bill  further  stated  that  corn- 
King,  plainant  and  King  were  afterwards  prosecuted  in  the  circuit 
court  of  Wayne  county,  by  said  Kinzie,  for  the  balance  due 
on  the  note  made  to  hitn  by  Collins  and  guaranteed  by  King 
and  complainant,  and  recovered  judgment,  and  issued  execu- 
tion thereon,  which  execution  was  paid  by  King.  That  after- 
wards, in  1835,  King  sued  complainant  in  the  circuit  court  of 
Wayne  county,  to  recover  one-half  of  the  amount  he  had  paid 
on  the  execution  in  favor  of  Kinzie,  and  obtained  judgment 
against  complainant  for  $147  47  damages,  and  $15  50  costs, 
and  that  execution  had  been  issued  thereon,  and  was  about  to 
be  levied  on  the  property  of  complainant. 

The  bill  prayed  for  an  injunction  to  restrain  King  from  pro- 
ceeding to  collect  any  execution  issued  on  said  judgment,  and 
for  a  discovery,  &c. 

Upon  this  state  of  facts,  an  injunction  was  granted  according 
to  the  prayer  of  bill,  by  one  of  the  justices  of  the  supreme' 
court,  to  stand  until  the  further  order  of  the  court. 

A  motion  was  now  made  by  King  to  dissolve  the  injunction 
and  dismiss  the  bill,  for  want  of  equity. 

A.  D.  Frazer,  in  support  of  the  motion. 

The  facts  alledged  in  the  bill  constitute  a  good  defence  to  the 
action  at  law;  and  complainant  shows  he  might  have  estab- 
lished the  facts  before  a  jury,  but  did  not  do  so. 

After  a  verdict  or  trial  at  law,  it  is  too  late  to  come  to  this 
court  for  discovery  or  relief.  This  court  will  not  afford  relief 
to  a  party  on  the  ground  that  he  has  lost  his  remedy  at  law. 
He  should  have  applied  for  a  discovery  before  trial.  Le  Guen 
vs.  Gouverneur  and  Kemhle,  1  John.  Cas.,  492,  502;  Duncan 
vs.  Lyon,  3  /.  C.  R.,  351;  Lansing  ys.  Eddy,  1  J.  C.  R,,  51; 
Smith  vs.  Lowiy,  Id.,  320;  Bai'ker  vs.  Elkins,  Id.,  465;  Penny 
vs.  Martin,  4  J.  C.  R.,  576;  5  Peters'  R.,  503. 

The  statute  of  frauds  is  a  perfect  bar  to  the  present  bill. 

To  raise  a  trust  by  implication  or  operation  of  law,  an  actual 
payment,  or  actual  loan  of  money,  must  be  shown.  Steere  vs. 
Steere,  5  /.  C.  R.,  1.     To  take  the  case  out  of  the  statute  of 


CASES  IN  CHANCERY.  15 

frauds,  its  terms  and  conditions  must  be  in  writing  and  signed  f'"" Circuit. 


by  the  party  to  be  ciiarged. 


Wright 


r». 


C.  W.  Whipple,  contra.  ^'"^^ 

The  Chancellor.  It  is  a  well  established  principle  in 
equity,  that  if  a  party  has  a  defence  at  law,  of  which  he  is  ad- 
vised before  the  trial,  and  neglects  to  make  it,  or  to  apply  to 
this  court  for  a  discovery,  if  necessary  to  his  defence  in  aid  of 
the  trial  at  law,  he  is  precluded  and  cannot  afterwards  have 
relief  in  this  court.  (1.) 

Lord  Hai'dioick  says,  it  must  appear  that  the  defendant  was 
ignorant  at  the  time  of  the  trial,  of  the  fact  which  renders  the 
verdict  at  law  contrary  to  equity;  and  even  then,  chancery 
will  not  relieve  where  the  defendant  submits  to  try  it  at  law 
first,  where  he  might,  by  a  bill  of  discovery,  have  come  at  the 
facts  by  the  plaintiff's  answer  before  trial  at  law.  [See  1  John. 
Ch.  R.,  50.) 

In  1  Schoales  and  Lef rays'  R.,  201,  Lord  Redesdale  says:  "I 
do  not  know  that  equity  ever  does  interfere  to  grant  a  trial  of 
a  matter  which  has  already  been  discussed  at  law;"  and  at  the 
close  of  the  opinion,  he  says:  "I  think  it  unconscientious  and 
vexatious  to  bring  into  a  court  of  equity,  a  discussion  which 
might  have  been  had  at  law." 

In  the  court  of  errors  in  New  York,  in  the  year  1800,  (1  John. 
Ch.,  436,)  it  was  decideed  in  a  case  involving  a  large  amount, 
that  where  a  party  in  a  suit  at  law,  has  a  knowledge  of  fraud 
or  other  matter  of  defence,  and  neglects  to  make  his  defence 
at  law,  a  court  of  chancery  will  not  interfere. 

In  the  case  of  McFickar  vs.  Wolcutt,  4  J.  R.,  510,  in  1808, 
Van  Ness,  Spencer  and  Kent  on  the  bench,  it  was  decided 
that  a  court  of  chancery  will  aid  a  defendant  in  obtaining  a 
discovery  before  a  trial,  but  not  afterwards. 

Van  JVesa,  in  giving  his  opinion,  says:  "granting  that  such 
answer  would  have  furnished  a  complete  defence,  still  as  they 
omitted  to  take  the  necessary  steps  to  possess  themselves  of  that 
answer  before  the  trial  at  law,  which  they  might,  and  if  they 


16  CASES  IN  CHANCERY. 

First  Circuit,  deemed  it  important,  ought  to  have  pursued,  they  are  now  too 
""■^^XbT^  late."     The  other  judges  concurred  in  the  same  conclusion. 
King.  In  1  J.  C.  R.,  51,  chancellor  Kent  says:  "the  general  rule 

is  that  this  court  will  not  relieve  against  a  judgment  at  law,  on 
the  ground  of  its  being  contrary  to  equity,  unless  the  defen- 
dant below  was  ignorant  of  the  fact  in  question  pending  the 
suit,  or  it  could  not  have  been  received  as  a  defence.  If  a 
party  will  suffer  judgment  to  pass  against  him  by  neglect,  he 
cannot  have  relief  here  for  a  matter  which  he  might  have 
availed  himself  of  at  law." 

In  TImnpson  vs.  Berry,  3  J.  C.  R.,  395,  which  was  a  cause 
of  exceeding  hardship,  relief  was  granted  as  to  that  part  of  the 
demand  to  which  no  defence  at  law  could  have  been  made; 
but  the  court  refused  to  interfere  as  to  the  balance,  because 
the  party  had  suffered  judgment  at  law  to  pass  against  him, 
without  making  his  defence  or  applying  for  discovery  before 

the  trial. 

In  the  case  of  Smith  vs.  Loicry,  1  Johns.  Ch.  R.,  320,  where 
an  iniquitous  judgment  was  obtained  by  subornation,  the  same 
rule  was  rigorously  adhered  to. 

As  the  same  question  is  involved  in  several  cases  now  pend- 
ing in  this  court,  I  have  purposely  referred,  briefly,  to  the 
leading  decisions  made  at  different  periods,  both  in  England 
and  this  country,  and  by  men  who  are  universally  acknow- 
ledged to  have  been  the  great  luminaries  in  this  branch  of  ju- 
risprudence. 

When  we  find  such  men  as  Lord  Hard  wick,  Lord  Redes- 
dale,  Van  Ness  and  Kent,  concurring  in  the  same  principles, 
it  would  almost  be  presumption  to  question  the  correctness 
and  justice  of  those  principles. 

It  remains  only  to  apply  these  principles  to  the  case  under 
consideration.  It  was  urged  at  the  hearing,  that,  from  differ- 
ence of  parties,  an  insurmountable  difficulty  existed  in  obtain- 
ing the  aid  of  this  court  by  a  discovery  prior  to  the  trial  at 
law.  I  cannot  perceive  any  such  difficulty.  King,  the  party 
enjoined  here,  was  either  a  party  to  the  agreement  to  release 
and  indemnify  the  complainant  from  all  his  liabilitiee  for  Col- 


CASES  IN  CHANCERY.  17 

lins,  and  among  others  the  note  to  Kinzie,  or  he  was  not.    If  ^'^st circuit. 
he  was  not  a  party  to  that  agreement,  he  is  not  bound  by  it;     wright 
and  it  would  be  unjust  and  contrary  to  equity  to  enjoin  and      King, 
inliibit  him  from  the  collection  of  Wright's  proportion  of  their 
joint  liability.     If  King  was  a  party  to  that  contract,  a  disco- 
very of  that  fact  might  have  been  obtained  by  a  bill  for  that 
purpose  in  this  court,  and  it  would  have  been  a  perfect  de- 
fence to  the  action  at  law  by  King  against  the  com])lainant; 
nor  can  there  be  a  doubt  that  a  court  of  chancery  would  have 
stayed  proceedings  at  law,  until  an  answer  to  the  bill  for  dis- 
covery could  have  been  obtained.     But,  from  the  case  made 
by  the  bill,  it  would  seem  that  the  complainant  had  a  defence 
at  law,  without  resorting  to  a  court  of  chancery,  -  According 
to  the  statement  in  the  bill,  Goodwin  knew  all   the  facts,  and 
what  the  contract  was;  and  I  cannot  perceive  on  what  grounds 
King  could  have  objected  to  the  introduction  of  Goodwin  as  a 
witness,  on  the  trial  of  the  suit  at  law,  between  King  and  the 
complainant. 

It  occurred  to  me  at  the  hearing,  that  it  was  possible  that 
the  bill  could  be  sustained  on  the  ground  of  the  trust,  as  urged 
in  the  argument;  but,  upon  further  examination,  and  on  the 
authority  of  the  case  in  5  Johns.  Ch.  ii.,  1,  I  am  satisfied  that 
it  cannot. 

To  raise  a  trust  by  implication,  there  must  be  an  actual  pay- 
ment of  money;  and  to  take  the  case  out  of  the  statute  of 
frauds,  the  terms  and  conditions  of  the  trust  must  be  in  wri- 
ting, under  the  hand  of  the  party  to  be  charged.  There  may 
be  other  special  circumstances  where  courts  have  declared  a 
trust,  none  of  which  exist  here. 

Upon  the  whole,  I  am  of  the  opinion   that   the  injunction 
cannot  be  sustained,  but  must  be  dissolved. 

Injunction  dissolved. 

(1)  AVhere  a  party  to  a  auit  ;itla\v  lias  knowledge  of  a  frauil  or  otlier  matter  of  (iefcnoc  in 
time  to  avail  himself  of  it,  at  the  trial  at  law,  and  he  neglects  to  do  so,  lie  ciinnot  aftenvards 
obtain  relief  in  a  court  of  ei|uity  against  the  judgment  at  law,  on  the  ground  of  such  fraud  or 
matter  of  defence  which  he  might  have  set  up  at  the  trial;  hut  is  forever  concluded  hy  tUc 
judgment.     Lc  Gucn  vs.  Oouccrncur,  1  John.  Ca.,  130. 

The  Court  of  Chancery  must  ho  sati-sfied  that  a  partv  has  justice  in  his  cause,  of  which  he 
could  not  avail  himself  ,-it  law,  hefore  it  will  interfere,  jrby  vs.  MrCrca,  I  Dfsau  R.,  4'2-i. 
Where  there  is  a  good  defence  at  law,  cquitv  will  not  relieve,  except  tiic  party  was  prevented 

Vol.  I.  3 


19  CASES  IN  CHANCERY. 

FirstCircult.  from  making  hi3  defence,  by  circumstaticeg  not  attributable  to  hia  neglect  or  Inattention.— 

Cunningham  vs.  Caldwell,  Hardin  R.,  173;  Cowell  vs.  Price,  1  Bihb  R.,  173;  Reeves  vs.  Hogan, 

^-^^^'V^^^   Cuoke  R.,  175;   Overton  v?.  Leary,  Id.,  36;   Winthrop   vs.  Lane,  3  Desau.  R.,   323;   Gatlin  vs. 

Wright       Kirkpatrick,  1  Car.  Law  Rep.,  584;   Z-ce  vs.  Bales,  "2  CA.  C«.,  95;    Williams  vs.  Z-ee,  3  ^/i.  R., 

vs.  223. 

*^''2'  A  bill  for  a  discovery  comes  too  late  after  a  trial  at  law ;  it  should  have  been  filed  pending 

the  suit  at  law,  so  that  the  facts  disclosed  in  the  answer  might  have  been  used  as  evidence  be- 
fore the  jury.     Thurmond  vs.  Dunham,  3  Yerger  R.,  99. 


CASES  IN  CHANCERY.  10 


Emily  Peltier  vs.  Charles  Peltier. 

Where  a  defendant  is  in  contempt,  he  cannot  move  to  set  nside  procee.lings;  but  where  there  First  Circuit, 
is  merely  a  failure  on  his  part  to  comply  witli  the  requisitions  of  an  interlocutory  .order,  v^^^y-^^ 
he  may  move  to  discharge  the  order  for  irregularity.  Kraily  Pel- 

A  feme  covert  connot  file  a  Iiill  ugalnst  her  husband  without  pro  chein  ami.  vs. 

Cliarles  IcI- 

■\Vhere  an  injunction  and  ne-ereat  were  issued,  May  31,  1830,  and  were  returned  served  on  Uer. 

the  6th  of  June;  and  the  subpoena  was  not  issued  until  the  2dday  of  July  following,  it 

was  held  to  be  irregular. 
A  court  of  chancery  has  no  jurisdiction  In  a  case-wtcre  the  bill  is  filed  for  alimony  merely. 

The  bill,  in  this  case,  was  filed  May  31,  1836,  in  the  supreme 
court  of  the  terrritory  of  Michigan,  in  chancery  sitting,  and 
set  forth  that  the  complainant  came  into  the  territory  of  Mi- 
chigan in  the  year  1834,  and  had  resided  in  said  territory  ever 
since.  That  in  the  month  of  January  following,  being  then 
of  the  age  of  twenty  years,  was  married  to  the  defendant, 
who  was  then  twenty-six  years  of  age,  or  there  abouts. 

Soon  after  the  marriage,  and  within  one  month,  the  defen- 
dant evinced  angry  feelings  towards  her,  and  abused  and  ill 
treated  her,  and  frequently  resorted  to  acts  of  violence  upon 
her  person.  That  in  the  month  of  November,  1836,  complain- 
ant was  confined  and  delivered  of  a  male  child,  and  when  the 
child  was  not  more  than  three  wrecks  old,  the  defendant  began 
to  beat  it  and  treat  it  with  great  barbarity;  at  one  time  pour- 
ing water  over  its  face  and  continuing  it  until  the  infant's  cries 
were  hushed  by  strangulation.  That  this  conduct  was  fre- 
quently repeated;  and  particularly  in  the  month  of  April,  1836, 
he  had  treated  the  child  with  great  cruelty;  and  had  beat  with 
great  violence  and  inhumanly  treated  the  complainant,  and 
used  the  most  violent  threats  towards  her,  and  soon  after  aban- 
doned her,  and  went  from  Port  Huron,  in  the  county  of  St. 
Clair,  (where  he  then  resided,)  to  the  city  of  Detroit,  and  had 
not  since  returned  to  her. 

The  bill  further  set  forth,  that  by  reason  of  the  shortness  of 
her  residence  in  the  territory,  she  was  unable  to  avail  herself 


20  CASES  IN  CHANCERY. 

Firstcircuit.  ^f  t^g  statutory  provision  enabling  persons  resident  three  years 
Peltier  ^"  ^^^  territory,  to  procure  divorces  for  the  cause  of  cruel 
peuier.  treatment,  and  that  complainant  had  no  means  of  support  for 
herself  and  child,  (who  was  then  aged  six  months,)  nor  for 
their  clothing,  or  to  pay  counsel  fees,  and  that  the  defendant 
had  adequate  means  for  that  purpose.  That  defendant  had 
been  applied  to  on  behalf  of  complainant,  to  make  some  pro- 
vision or  allowance  for  the  purposes  aforesaid,  and  also  for  the 
education  of  the  child,  which  he  had  refused  to  do. 

The  bill  also  set  forth,  that  defendant  had  declared  his  inten- 
tion to  leave  this  country  and  go  to  Europe  to  reside,  as  soon 
ns  he  could  raise  sufficient  money  to  enable  him  to  do  so;  and 
that  he  was  then  actually  arranging  his  affairs  for  that  purpose, 
and  had  threatened  to  take  from  her  the  child  and  carry  it 
away  with  him. 

The  bill  prayed  that  defendant  be  restrained  by  injunction 
from  molesting  the  retreat  and  invading  the  retirement  and 
privacy  of  complainant,  or  in  any  way  intermeddling  with  her, 
and  that  defendant  might  be  restrained  from  taking  away  from 
complainant,  the  custody  and  care  of  the  child,  or  interfering 
with  her  management  of  the  same,  and  that  she  might  have 
the  sole  and  absolute  custody,  care  and  management  of  the 
child;  and  that  defendant  be  decreed  to  maintain  and  support 
complainant  and  the  child,  and  to  pay  such  allowance  weekly, 
as  should  be  found  suitable  and  adequate  for  the  maintenance 
and  clothing  of  complainant,  and  also  for  the  clothing,  mainte- 
nance and  education  of  the  child,  and  that  the  regular  pay- 
ment thereof  be  secured;  and  for  such  reasonable  sum  to  ena- 
ble complainant  to  prosecute  her  suit  as  to  the  court  should 
seem  proper. 

It  also  prayed  for  a  writ  of  ne-exeat,  to  restrain  defendant 
from  departing  the  territory,  and  for  a  subpoena,  in  the  usual 

form. 

A  writ  of  ne-exeat,  directing  security  to  be  given  in  the 
sum  of  $5,000,  and  also  the  writ  of  injunction  prayed,  were 
allowed  by  the  Hon.  George  Morell,  one  of  the  justices  of  the 
supreme  court. 


CASES  IN  CHANCERY.  21 

The  injunction  and  ne-exeat  were  served  on  the  defendant  f"'"<<''i'«""- 

June  6,    183G.  PelUer 

At  the  same  term,  June  20,  Woodbridge  and  Backus  filed     pewer. 
the  following  motion: 

Woodbridge  and  Backus  move  that  the  injunction  in  the 
premises  issued,  be  dissolved,  and  that  said  writ  be  set  aside; 
and  for  reasons,  show  to  the  court  here,  the  following,  to  wit: 

1.  For  that  the  same  is  irregular. 

2.  For  that  the  same  is  not  sanctioned  by  any  equity  in  the 
bill  of  complaint  contained. 

3.  For  that  no  bill  of  complaint  is  regularly  filed  nor  exhibi- 
ted in  the  premises. 

4.  For  that  the  case  made  thereby  is  disproved  by  affidavits. 

5.  For  that  the  subject  matter  of  said  writ,  is  not  an  appro- 
priate nor  legal  subject  for  a  writ  of  injunction. 

6.  For  that  the  same  issued  without  subpoena  and  improvi- 
dently. 

They  also  move  that  the  ne-exeat  in  said  cause  issued,  be  dis- 
charged, and  the  same  writ  be  set  aside. 

1.  For  that  the  same  issued  improvidently  and  irregularly. 

2.  For  that  no  definite  sum  of  money  is  therein,  nor  in  said 
bill,  shown  to  be  due,  nor  at  hazard,  either  at  law  or  in  equity. 

3.  For  that  this  honorable  court  has  not  jurisdiction  of  ma- 
trimonial causes,  except  for  the  purpose  of  granting  divorce; 
and  said  bill  neither  presenting  a  case  nor  containing  a  prayer 
for  such  divorce,  though  the  same  purports  to  be  a  matrimo- 
nial cause.  The  subject  matter  of  said  writ  and  the  aid  sought 
to  be  obtained  thereby,  are  illegal  and  incompetent. 

4.  For  that  said  writ  is  not  accompanied  by  a  subpoena  to 
answer. 

5.  For  that  no  bill  of  complaint,  by  a  competent  party,  is 
regularly  filed  in  the  premises. 

6.  For  that  the  case  presented  therein  is  disproved  by  affi- 
davit. 

They  also  move  that  the  bill  of  complaint  in  the  premises, 
exhibited  and  filed,  be  dismissed: 


23  CASES  IN  CHANCERY. 

Firstcircuit.      I    FoF  that  the  said  bill  is  exhibited  and  filed  by  Emily  Pel- 
""■^^^^^  tier  alone;  whereas  it  appears,  by  the  showing  thereof,  that 
Peiuer.     said  Emily  is  a  feme  covert,  and  in  no  wise  competent  in  the 
law,  to  file  said  bill,  except  in  the  name  of  her  pro  chein  ami. 

2.  For  that  this  honorable  court  has  no  jurisdiction  of  the 
subject  matter  of  said  bill,  and  that  no  subpoena  ad  responden- 
dum has  been  served  thereupon. 

At  the  same  term,  June  29,  the  supreme  court  granted  an 
order,  that  the  defendant  forthwith  pay  into  the  hands  of  the 
register  of  the  court,  for  the  use  of  the  complainant,  the  sum 
of  $40,  in  order  to  enable  her  to  defray  the  expenses  in  the 
prosecution  of  this  suit;  and  also  that  defendant  pay  every 
week,  from  that  day,  into  the  hands  of  the  register  of  the 
court,  for  the  use,  support  and  maintenance  of  complainant, 
the  sum  of  #4,  until  the  further  order  of  the  court. 

A  certified  copy  of  said  order,  together  with  a  subpoena  to 
answer  the  bill  of  complainant,  were  served  on  defendant,  July 
27,  1836. 

On  the  organization  of  the  state  government,  this  cause 
among  others,  pending  on  the  chancery  side  of  the  supreme 
court  of  the  territory,  was  transferred  to  the  court  of  chan- 
cery, established  under  the  state  government,  and  was  con- 
tinued by  consent  of  parties  until  the  February  term  of  the 
court  of  chancery;  when  Woodbridge  renewed  the  motion 
to  dissolve  the  injunction  and  set  aside  the  writ;  and  that  the 
ne-exeat  be  discharged  and  the  writ  set  aside;  and  that  the 
bill  be  dismissed  for  irregularity  and  want  of  jurisdiction;  and 
also  moved  that  the  order  made  June  29,  1836,  be  discharged, 
vacated  and  rescinded,  on  the  ground  that  the  same  was  made 
unadvisedly,  improvidently  and  ex  parte. 
'  At  the  same  term,  A.  D.  Frazer,  solicitor  for  complainant, 
on  filing  the  affidavit  of  John  Winder,  (who  was  on  the  29th 
day  of  June,  1836,  register  of  the  supreme  court  of  the  ter- 
ritory, and  now  register  of  the  court  of  chancery,)  that  the 
order  made  June  29,  1836,  by  the  supreme  court,  had  not 
been  complied  with;  and  that  no  money  had  been  paid  into  his 
hands  by  defendant  for  the  use  of  complainant,  to  defray  the 


CASES  IN  CHANCERY.  23 

expenses  of  this  suit  or  for  alimony,  moved  that  defendant  be  ^'"t circuit, 
committed  for  a  contempt  of  court  for  not  complying  with  the      pcuier 

order.  PelUer. 

Both  motions  came  on  to  be  heard  at  the  same  time. 

The  following  brief,  being  the  same  that  WooDBnioGE  sub- 
mitted when  he  appeared  in  the  cause  as  amiciis  curicB,  to  re- 
sist the  motion  on  which  the  order  of  June  29,  183G,  was 
granted,  was  used  and  submitted  on  the  arguments  of  these 
motions,  by 

W.M.  WooDBRiDGE,  soUcitor  for  defendant. 
WooDBRiDGE,  as  umicus  curice,  moves  to  dissolve  injunction, 
discharge  ne  exeat,  and  dismiss  the  bill  for  irregularity  and 
want  of  jurisdiction,  and  resists  the  motion  of  complainant  for 
the  same  reasons;  and  he  insists  that  no  bill  and  no  parties  are 
regularly  here,  and  therefore  it  is  not  competent  to  make  an 
allowance. 

First.  It  is  not  competent  for  a  fc7tie  covert  to  file  a  bill  in 
her  own  name.  If  the  bill  be  against  her  husband,  she  must 
sueby  her  pro  chein  ami.  This  is  a  rule  so  perfectly  establish- 
ed and  so  familiarly  known,  that  no  authority  can  be  necessa- 
ry to  support  it.  If  an  application  for  a  divorce  can  be  sus- 
tained in  the  name  of  a  married  woman,  (without  a  p?'o  chein 
ami,)  it  is  because  of  an  express  provision  of  the  statute  in 
that  regard.  This  is  not  an  application  for  a  divorce.  {See 
Woodys.  Wood,  2  Paige  K,  457;  Milford,  153;  Cooper,  28, 
163;  Clancy,  on  the  rights  of  women,  358,  6;  2  Kent's  Com., 
137.) 

Second.  It  is  irregular  to  cause  a7iy  action  upon  a  bill,  even 
to  issue  injunction,  unless  simultaneously  there  be  a  siibpasna 
to  answer;  and  can  such  an  order  pass  without  an  appear- 
ance? {See  Parker  vs.  Williams,  4  Paige,  439;  Attorney  Ge- 
neral \&.  J^ichol,  16  Ves.,  338;  Eden,  35;  Fellows  vs.  Fellows, 
4  Johns.  Ch.  R.,  25;  Eden,  38,  232.) 

Third.  This  Court  has  no  jurisdiction  of  the  subject  matter 
of  the  bill.  The  essential  scope  of  the  bill  is  to  obtain  a  sup- 
plicavit  and  alimony.  Now,  as  to  a  supplicavit,  a  court  of 
chancery  cannot  exercise  jurisdiction  of  it;  at  least,  unless  that 


24  CASES  IN  CHANCERY. 

Firstcircuit.  ifiatter  arise  incidentally  in  the  course  of  the  exercise  of  an- 
'"■'^^J^j^  other  and  a  principal  object  of  the  suit.     {Codd  vs.  Codd,  2  J. 

Peltier.        C   /?.,    141.) 

For  the  rest,  the  judicial  officers  of  the  law  in  the  territo- 
ry are  abundantly  competent,  in  the  ordinary  administration 
of  the  law,  to  furnish  all  the  relief  and  protection  necessary. 
(2  Har.  Cha.,  168;  Codd  vs.  Codd,  2  J.  C.  R.,  141;  Head  vs. 
Head,  3  ^tk.,  .550.) 

Of  alimony  this  Court  can  have  no  jurisdiction,  except  so 
far  as  incident  to  the  power  of  granting  a  divorce.  {Lewis  vs. 
Lewis,  3  Johns.  Ch,  R.,  519;  Mix  vs.  Mix,  1  Johns.  Ch.  R., 
108;  1  Fond.,  96;  Head  vs.  Head,  3  Jith.,  547;  2  Chit.  Pra.. 
434-5,  462-3;   1  Mad.,  305-6-7— woie. ) 

Or,  unless  it  be  applied  for  upon  the  footing  of  an  agreement 
of  separation,  and  allowance  of  separate  maintenance  duly 
entered  into;  and  even  then  it  would  be  exceedingly  doubtful, 
unless  some  third  person  had  acquired  an  interest,  or  the  agree- 
ment had  been  entered  into  with  some  third  person.  [Bullock 
vs.  Menzies,  4  Ves.,  Jr.,  799;)  or  where  it  is  claimed  to  accrue 
from  a  trust  fund  which  chancery  only  can  touch:  and,  as  a  ge- 
neral rule,  chancery  has  no  jurisdiction  in  matrimonial  cases. 
(Legard  \s.  Johnson,  3  Ves.,  Jr.,  351.) 

Chancery  has  never  established  a  separation,  except  in  pur- 
suance of  a  previous  agreement,  and  with  great  reluctance 
even  then.  (1  Jl/ac?,,  305-6-7.)  Nor,  of  course,  does  it  grant 
alimony,  as  a  principal  object  of  relief. 

Fourth.  But  if  alimony  were  regularly  claimed,  as  a  mea- 
sure of  relief,  purely  incidental  to  some  other  principal  pray- 
er, still  the  party  petitioning  lor  it,  should  apply  in  due  form. 
How  can  the  court  regulate  the  amount?  Suppose  the  de- 
fendant were  insolvent  ?  Suppose  worth  $50,000  per  annum, 
would  the  rate  of  allowance  be  the  same?  If  the  appli- 
cation were  secundum  artein,  the  party  w^ould  file  a  peti- 
tion, give  notice  of  it,  and  file  also  an  "allegation  of  faculties." 
This  allegation  of  faculties,  being  answered  by  respondent  un- 
der oath,  would  exhibit  a  true  state  of  his  funds  and  capacity 
to  pay.     Nor  will  counsel  fees  be  allowed  by  the  court  where 


CASES  IN  CHANCERY.  25 

there  is  jurisdiction,  except  ex  necessitate.     (3  Johns.  Cha.,  I'u^st circuit. 

519.)  rellicr 

Fifth,  The  bill  is  not,  in  contemplation  of  law,  sworn  to  at  vcilicr. 
all.  A  wife  cannot  be  allowed  her  oath  against  her  husband, 
in  any  case,  as  a  general  rule,  except  where  she  swears  arti- 
cles of  the  peace  against  him,  or  where  personal  violence  is 
committed  upon  her;  and,  therefore,  neither  injunction,  ne-exe- 
at,  nor  supplicavit,  are  regular.  (2  War.  Cha.,  IGl:  Sedg- 
wick vs.  Watkins,  1   Fes.,  Jr.,  49.) 

But  it  is  anticipated  that  the  court  will  consider  the  motion 
to  dissolve  the  injunction,  discharge  the  ne-exeat,  and  dismiss 
the  bill  at  the  same  time,  and  for  the  reasons  on  file;  as  the 
consideration  of  the  whole  matter  involved  in  this  motion;  al- 
most, is  necessarily  involved  in  the  motion  submitted  by  com- 
plainant. Writs  of  ne-exeat,  effecting  the  rights  of  personal 
liberty,  are  never  granted,  except  reluctantly.  ( Woodward  vs. 
SchatxeU,  3  J.  C.  R.,  412.)  Never,  except  a  specijic  sum  ap- 
pear manifestly  due,  and  in  imminent  danger  of  loss  unless  it 
be  allowed,  and  which  courts  of  law  are  incompetent  to  save. 
(2  War.  Cha.,  161;  1  Ves.,  Jr.,  49,  94;  2  Atk.,  210.)  Here 
no  sum  has  been  decreed,  or  sworn  to.  If  there  rest  any  lia- 
bility on  the  part  of  the  husband  to  pay  for  the  support  of  the 
wife,  it  is  a  liability  at  law;  let  him  be  sued  for  it. 

The  injunction  is  equally  untenable.  The  bill  is  irregularly 
filed.  It  is  as  if  there  were  no  bill;  for,  (unless,  perhaps,  for  di- 
vorce, and  this  is  not,)  the  wife  cannot  file  her  bill  without  her 
pro  chein  ami,  and  the  injunction  must  be  dissolved,  for  there  is 
no  subpoena  to  answer.  The  subject  matter  and  scope  of  the 
injunction  is  without  precedent  and  illegal.  The  complainant 
meant  to  pray  for  and  obtain  a  supplicavit,  not  an  injunction. 
But  it  is  hy  statute,  that  in  England  the  chancellor  exercises 
this  power;  and,  I  apprehend,  never,  even  there,  except  in  a 
matter  incidental  to  the  main  object  of  the  suit.  Such  an  in- 
junction interferes  with  the  marital  rights  and  duties  of  the 
husband  in  a  wav  not  to  be  tolerated.  But  if  life  were  in  dan- 
ger,  a  justice  of  the  peace  would  bind  the  party  to  his  good 
Vol.  I.  4 


Peltier 

vs. 
Peltier. 


2flr  CASES  IN  CHANCERY. 

Firstcircuit.  behavior,  leaving  the  wife,  where  the  law  leaves  her,  in  the 
custody  and  under  the  protection  of  the  husband. 

The  bill  should  be  dismissed,  because  the  court  has  no  juris- 
diction of  its  subject  matter. 

Alexander  D.  Frazer  for  complainant. 

The  complainant  contends  that  the  general  rule  is,  that  the 
party  must  clear  his  contempt  before  he  can  be  heard.  ( Vowles 
vs.  Youngs,  9  Vesey,  173;  Hewitt  vs.  McCurtney,  13  Id.,  560; 
w2non.,  15  Id.,  174.) 

On  a  question  whether  the  defendant  could,  before  his  con- 
tempt were  cleared,  though  he  offered  to  pay  all  the  plaintiff's 
demand,  ordered  that  he  should  bring  before  the  master,  prin- 
cipal, interest  and  cost,  and  then  be  at  liberty  to  move  to  dis- 
charge sequestration.  [Lord  Wenman  vs.  Osbaldiston,  2  Brown 
P.  C,  142.) 

Though  an  injunction  be  irregularly  obtained,  it  must  be 
obeyed  or  the  party  is  in  contempt.  ( Woodward  vs.  King,  2 
Ch.  Ca.,  203,  127;  Partington  vs.  Booth,  3  Mer.,  148.) 

Alimony  has  been  decreed  to  a  wife  without  a  divorce, 
where  she  was  compelled  to  leave  the  husband  from  ill  usage, 
although  she  had  not  been  beat  or  turned  away.  (1  Equity 
Digest  by  Barbour  and  Harrington,  266;  Rhume  vs.  Rhume, 
1  McCord,  CA.,205;  Thornberry  vs.  Thornberry,  2  J.  J.  Mar- 
shall, 324;  Denton  vs.  Denton,  1  Johnson.  C.  R.,  364;  Hewitt 
vs.  Hewitt,  Blands.  Ch.  Rep.,  101;  Jelineau  vs.  Jelineau,  2 
Desaus,  45;)  and  if  there  be  no  precedent,  the  court  will  make 
one.  {Idem,  50;  Devall  vs.  Devall,  4  Desaus,  79;  Anon.  Id.  94; 
Taylor  vs.  Taylor,  Id.,  167;  Id.,  183.) 

Court  of  chancery  has  jurisdiction  in  all  cases  of  alimony, 
and  defendant  will  be  committed  until  he  comply  with  the  de- 
cree. {Purcell  vs.  Purcell,  4  Hen.  and  Munf.,  507;  Id.  515; 
Id.  517;  Id.,  520;  Anon.  1  Hayne,  347.) 

Courts  of  chancery,  in  this  country,  have  authority  to  de- 
cree alimony  independent  of  any  legislative  enactment;  tem- 
porary alimony,  and  money  to  carry  on  the  suit,  is  a  matter 
of  course.     [Fishli  vs.  Fishli,  2  Lift.  337;  Butkr  vs.  Butler, 


CASES  IN  CHANCERY.  27 

4  Id.,  202;    Wright  vs.  ^n^/i^  1  Edw.,  62;  S'mz7/i  vs.  Smith,  First  circuit. 
Id.  255;   Stanford  vs.  Stanford,  Id.,  317.)  Pducr 

An  injunction  was  appropriate   to  prevent  intercourse   or     Peiu'er, 
molestation  on  the  part  of  the  husband.    {Warier  vs.  Yorke,  19 
Vesey,  454.) 

It  is  competent  for  a  feme  covert  to  institute  suit  without  a 
pro  chein  ami ;  and  the  affidavit  of  the  wife  may  be  received 
against  the  husband  and  will  authorize  the  granting  of  an  in- 
junction and  ne-ezeat.  {Kirhy  vs.  Kirhij,  1  Paige,  261;  Pyle 
vs.  Cravejis,  4  Litt.,  18.) 

WooDBRiDGE  in  roplv. 

It  is  now  objected  that  the  defendant  is  excluded  from  this 
motion  because  counsel  say,  "  he  is  in  contempt  for  not  obey- 
ing the  order  now  sought  to  be  set  aside." 

It  is  admitted  that  when  a  contempt  is  "fixed"  upon  one,  he 
cannot,  in  general,  move  until  the  contempt  "  is  purged." 

But  even  this  rule  applies  rather  to  appeals  to  the  "  discre- 
tion"— that  is,  to  the /auor  of  the  court,  and  does  not  and  can- 
not preclude  the  enforcement  of  mere  right.  {Johnson  vs.  Pin- 
ney,  1  Paige,  646;  7  Paine' s  Rep.,  58;  9  Whea.,  868.)  The  nul- 
ity  of  an  order,  &c.,  may  be  always  shown. 

But  in  this  case,  there  is  no  contempt  fixed.     At  the   first 
practicable  moment,  the  motion  is  made  to  set  aside  the  order 
for  irregularity,  &c.,  and  before  any  movement  of  complainant. 
But  to  this  moment,  nothing  under  that  order,  is  done  by 
complainant  to  bring  us  in  contempt.     An  order  or  a  decree, 
(and  they  both  stand  upon  the  sa7}ie  footing)  to  pay  money,  is 
to  be  enforced  by  "  execution,"  and  in  that  way  only.     (1  Har. 
Cha.,  442  to  445;  2  Har.  Cha.  141-2;  J^ew  Pra.  194-5  ;   "  or- 
ders on  decrees,''  Hind.  Cha.' 429;  JVezo  Pra.  70-1.)     And  es- 
pecially where  the  order  is  to  pay  money,  the  course  is  by  exe- 
cution.    (2  Mad.,  new  ed.,  402-4;  8  Ves.  381;  2  Mad.,  olded., 
305.) 

And  until  complainant  move,  by  execution  upon  the  order 
against  us,  it  cannot  be  enforced.  In  New  York  there  is  an 
express  statutory  provision  for  the  enforcement  of  orders,  &c., 
by  serving  copies,  but  we  have  no  such  statutory  provision. 


28  CASES  IN  CHANCERY. 

Firstcircuit.      Another  matter  is  worthy  of  note;  that  is,  that    Winder^ s 
^"^^X^  affidavit  was  not  filed  until  this  term.     And  if  our  situation  in 
peuier.     this  regard  brings  us  within  the  rule  alluded  to,  then  any  sug- 
gestion of  contempt,   without  affidavit,  will,  at  any  time  be 
found  to  be  a  sufficient  apology  for  suppressing  all  claim  of 
legal  and  constitutional  right.     But  if  the  party  were  techni- 
-    cally  in  contempt,  still  it  is  competent  to  set  aside  the  order 
which  is  rendered  against  him   for  irregularity,  even;  much 
more  for  nullity.     (3  Bar.  and  Harr.  Eg.  Dig.,  257;  Green  vs. 
Green,  2  Sim.,  394;  2  Con.  Cha.,  540;  4  Con.  Cha.,  528;    Jen- 
Uns  vs.  Wild,  2  Paige,  394.) 

And  this  doctrine  is  practically  supported  by  the  numerous 
New  York  cases.  For  in  all  them,  perhaps — in  most  of  them 
certainly,  laborious  investigations  are  gone  into  to  show  the 
regularity  of  the  proceedings,  or  the  contrary;  and  all  clearly 
supporting  the  proposition  that  where  the  irregularity  is  so 
glaring  as  to  amount  to  nullity,  this  fact  may  be  shown.  {Hig- 
hie  vs.  Edgarton,  9  Paige,  253;  Sanford  vs.  Brown,  4  Paige,  R., 
360;  Sullivan  vs.  Judah,  Id.  444;  Osgood  vs.  Johnson,  3  Paige, 
^.,195;  People  vs.  Spalding,  2  Paige,  329.)  And  these,  appa- 
rently, contain  the  most  unfavorable  aspect,  as  against  us,  which 
the  doctrine  will  bear.  And  the  mere  failure  to  comply  with 
an  interlocutory  order,  does  not  of  itself  place  the  party  in  con- 
tempt, nor  preclude  him  from  showing  its  irregularity.  (Hill 
vs.  Bissell,  Mose.  R.,  259;   1  How.  Pra.  369.) 

The  Chancellor. — These  are  cross  motions,  and  must  ne- 
cessarily both  be  considered  at  the  same  time. 

When  a  defendant  is  in  contempt,  he  cannot  move  to  set 
aside  proceedings;  but  when  there  is  merely  a  failure  on  his 
part  to  comply  with  the  requisitions  of  an  interlocutory  order, 
he  may  move  to  discharge  the  order  for  irregularity.  {Hill 
vs.  Bissell,  Mose.  R.,  259.) 

Here  no  contempt  is  fixed,  and  the  defendant  moves  to  set 
aside  the  order  at  the  earliest  opportunity.  Orders  of  this 
kind  are  usually  enforced  by  execution,  and  a  mere  failure  to 
comply  with  the  requisitions  of  such  an  order,  is  not  such  a 


CASES  IN  CHANCERY.  29 


contempt  as  will  preclude  the  party  from  moving  1o  discharge  F'"tci 
the  order  and  set  aside  the  proceedings  for  irregularity.  pemer 

The  proceedings  in  this  case  seem  to  have  been  irregular     PeUicr. 
throughout.     The  bill  vras  filed  by  ^  feme  covert  without  j)^o 
chein  ami,  and  w^as,  therefore,  improperly  before  the  court. 
( Wood  vs.  Wood,  2  Paige  R.,  454;  sa?ne  case  on  appeal,  8  Wend., 
357;  Mifford,  153;    Cooper,  1G3.) 

The  injunction  and  ne-exeat  were,  issued  May  31,  1836,  re- 
turnable on  the  first  Monday  of  June  following,  and  were  ser- 
ved June  6,  1836.  The  subpoena  was  not  issued  until  the  se- 
cond day  of  July,  1836.  This  was  clearly  irregular.  {Par- 
ker vs.  Williams,  4  Paige  R.,  439;  Attorney  General  vs.  Jfich- 
ol,  16  Ves.,  338.) 

The  next  question  that  arises,  is,  as  to  the  jurisdiction  of  the 
court. 

The  bill  in  this  case  is  filed,  not  for  a  divorce,  but  for  alimony 
merely. 

It  appears  from  the  authorities  cited  by  the  counsel  for  the 
complainant,  that  the  courts  of  South  Carolina  have  entertain- 
ed bills  of  this  kind;  but  they  have  usually  been  to  carry  into 
effect  some  marriage  contract,  or  where  a  trust  property  was 
involved.  I  can  find  no  other  case  where  the  jurisdiction  has 
been  sustained  when  the  question  has  been  raised.  In  the  case 
of  Hewitt  vs.  Hewitt,  1  Bland  R.,  101,  the  jurisdiction  was  not 
questioned,  the  facts  were  admitted,  and  the  whole  matter  was 
submitted  to  the  court.  The  cases  referred  to  in  the  note  to 
that  case,  are  too  indefinite  to  entitle  them  to  any  weight  as 
authority. 

The  whole  current  of  authorities  goes  to  show  that  courts 
of  chancery  have  never  entertained  jurisdiction  in  cases  of  this 
kind,  except  in  aid  of  some  other  court,  or  to  carry  into  efl'ect 
a  marriage  contract,  or  in  the  execution  of  a  trust.  [Peame 
vs.  Lisle,  Jlmbler  R.,  75;  Perry  vs.  Perry,  2  Paige,  501.) 

In  England,  when  the  court  of  chancery  succeeded  to  the 
jurisdiction  of  the  spiritual  courts  during  the  usurpation,  it  en- 
tertained suits  of  this  kind,  but  not  since  the  restoration.     {See 


rcuit. 


m  CASES  IN  CHANCERY. 

Firstcircuit.  jj^^^  ^s.  Head,  3  Jltk.,  551;   Wathjns  vs.  Wathyns,  2  Atk,  98; 

Peltier        i^0w6.    S^-.,   98,   TlOte  71.) 

Peltier.  In  the  case  of  Codd  vs.  Codd,  2  J.  C.  R.,  141,  the  bill  pray- 
ed for  a  writ  of  supplicavit  to  protect  the  person  of  the  peti- 
tioner, and  her  property  and  children  from  insult  and  injury, 
pending  the  suit,  and  chancellor  Kent  refused  the  writ,  saying, 
<' Why  should  not  the  party  apply  to  a  justice  of  the  peace  to 
bind  the  other  to  good  behavior?" 

The  cases  cited  in  Besaussure's  equity  reports  of  South  Car- 
olina, seem  to  be  a  departure  from  principle,  and  cannot,  there- 
fore, be  regarded  as  authority  in  this  case.  If  it  is  intended 
that  courts  of  chancery  should  take  jurisdiction  of  this  class  of 
cases,  that  jurisdiction  must  be  given  by  law.  I  am  satisfied 
that,  exclusive  of  any  statutory  provision  upon  the  subject, 
this  court  has  no  jurisdiction  to  entertain  proceedings  of  this 
kind. 

The  orders  must  be  discharged  and  the  bill  dismissed. 


CASES  IN  CHANCERY.  gj- 


Jonathan  Burtch  vs.  Hannah  Hogge  and  others. 

Where  the  agent  or  attorney  of  the  complainant  examined  witnesses  and  wrote  their  deposi-  Fir.t  Circuit 

Uons,  and  the  commissioner  before  whom  tliey  were  taken,  was  absent  from  the  room  sevc-  n^-^,."^,, 
ral  times  during  the  examination,  and  the  defendant  did  not  appear  and  cross  examine  tlie        ij„rtcli 
witnesses,  the  proceedings  were  held  to  be  irregular,  and  the  depositions  were  suppressed.  rJ."  ' 

It  seems  that  courts  of  equity  will  take  notice  of  irregula^-ities  and  unfairness  in  taking  deposi-  "°^*' 

lions,  at  any  stage  of  the  proceedings  in  the  cause,  before  hearing. 

Where  under  a  parole  agreement  to  convey  land,  the  purchase  money  had  been  paid,  posses- 
sion taken,  and  valuable  improvements  made,  it  was  held  to  be  sufficient  to  take  the  case 
out  of  the  statute  of  frauds. 


Inadequacy  of  price,  where  it  is  so  gross  and  palpable  as  of  itself  to  appear  evidence  of  actual 
fraud,  may  b«i  sufficient  to  induce  this  court  to  stay  the  exercise  of  its  discretionary  power 
to  enforce  a  specific  performance,  and  leave  a  party  to  his  remedy  at  law ;  but  inadequacy  of 
price  merely,  without  being  such  as  to  prove  fraud  conclusively,  is  not  a  good  objection 
against  decreeing  a  specific  performance. 

The  bill  in  this  case  was  for  a  specific  performance  of  a  con- 
tract for  the  sale  of  real  estate. 

The  bill  charged  that  Robert  Hogge,  the  husband  of  said 
Hannah,  (who  was  now  dead,)  in  the  month  of  May,  1832, 
was  seized  and  possessed  of  an  undivided  interest  of  seven  and 
a  half  acres  of  land  at  the  mouth  of  Black  river,  in  the  county 
of  St.  Clair,  being  part  of  the  north  cast  fractional  quarter  of 
section  ten,  in  township  six  north,  of  range  seventeen  east, 
containing,  in  the  whole,  ninety-one  acres.  That  May  25, 
1832,  Robert  Hogge  agreed  to  sell  to  Jonathan  Burtch,  the 
complainant,  seven  acres  of  said  land  owned  by  him,  for  the 
consideration  of  8150.  That  in  June  and  July  following,  in 
various  sums,  and  at  different  times,  Burtch  paid  to  said  Ro- 
bert, $129  of  said  consideration,  for  which  said  Hogge  gave 
his  receipts  and  put  complainant  in  possession  of  the  premises. 
That  complainant  had  made  improvements  on  the  premises  to 
the  amount  of  $1,500  and  upwards,  and  had  kept  possession  of 
said  premises  ever  since.  That  some  time  in  the  month  of 
May,  aforesaid,  complainant  procured  a  deed  to  be  made  out 
from  Hogge  to  him,  of  the  land;  but  before  it  was  executed, 
in  August  thereafter,  Hogge  was  suddenly  taken  ill,  and  died 
intestate,  leaving  the  defendant,  his  widow,  and  heirs  at  law, 


32  CASES  IN  CHANCERY. 

FiMt Circuit,  to  inherit  the  estate.     That  his  wife  administered  on  his  es- 

Burich     ^^t^f  ^"^  ^h^  balance  of  the  purchase  money  was  paid  to  her, 

Hogge.     and  she  acknowledged  satisfaction  and  gave  receipts  therefor, 

and  said  she  felt  desirous  and  willing  to  convey  the  legal  title 

to  the  lot,  if  authorized  so  to  do. 

The  bill  prayed  that  the  defendant  be  compelled,  specifically, 
to  carry  said  agreement  into  effect  by  executing  a  conveyance 
of  the  premises  to  the  complainant. 

The  answer  of  Hannah  Hogge,  (widow  of  Robert  Hogge,) 
admits  that  Rohei'i  Hogge  was  seized  of  seven  and  a-lialf  acres 
of  land  as  alledged  in  the  bill.  Neither  admits  nor  denies  there 
was  a  contract  made  as  alledged  in  the  bill,  but  denies  any 
positive  knowledge  of  its  terms;  admits  that  she  knew  of  the 
payment  of  money  by  complainant  to  Hogge,  and  that  she  re- 
ceived money  after  the  death  of  Hogge,  on  account  of  the 
land,  and  gave  receipts  therefor.  Denied  that  she  ever  agreed 
to  convey  her  right  of  dower,  and  also  denied  that  there  was 
any  contract  in  writing,  and  claimed  the  benefit  of  the  statute 
of  frauds. 

John  Doran,  in  his  answer,  denied  any  personal  knowledge 
of  the  matters  stated  and  charged  in  the  bill,  and  alledged  that 
he  had  been  appointed  admistrator,  de  bonis  non,  of  the  estate 
of  Robert  Hogge,  and  claimed  the  benefit  of  the  statute  of 
frauds.  The  heirs,  who  were  minors,  answered  merely  pro 
forma,  and  denied  any  personal  knowledge  of  the  matters  sta- 
ted and  alledged  in  the  bill. 

The  cojnjplainant  replied  generally  to  these  several  answers. 

An  order  was  obtained  to  take  testimony,  requiring  ten  days 
previous  notice  to  be  given  by  the  party  taking  testimony;  the 
notice  was  served  by  complainant  on  Woodbridge,  solicitor  for 
defendants,  at  Detroit,  on  the  seventh  day  of  September, 
1835,  to  take  testimony  at  Palmer,  St.  Clair  county,  on  the 
16th,  17th  and  18th  days  of  the  same  month. 

The  testimony  having  been  taken,  returned  and  filed, 

Woodbridge  &  Backus,  on  behalf  of  the  minor  heirs,  move 
to  suppress  the  depositions  taken  on  the  16th  and  17th  days  of 
September,  for  irregularity. 


CASES  IN  CHANCERY.  33 

It  appeared  from  the  certificate  of  Horatio  James,   the  spe-  FirstCircuit. 
cial  commissioner  appointed  to  take  the  testimony,  that  seve-  "^-^^^^^-^ 

1        •  .   1      r  1  Burtch 

ral  witnesses  appeared  before  him,  at  his  oflice  in  St.  Clair,  on       "• 

Hogge. 

the  part  of  the  complainant,  and  that  Ira  Porter,  Esq.,  appear- 
ed as  counsel  for  the  complainant,  and  put  questions  generally 
to  the  witnesses,  and  took  down,  in  his  own  handwriting,  all 
the  answers  given  to  such  questions  by  the  witnesses,  and  re- 
duced to  writing  all  the  depositions  taken;  that  neither  the  de- 
fendants, their  agent,  or  attorney,  were  present  at  the  exami- 
nation until  all  the  witnesses  had  testified;  that  he  had  frequent 
occasions  to  leave  the  room,  and  was  not  present  all  the  time 
during  the  examination;  that  he  only  administered  the  oaths 
to  the  witnesses  after  their  depositions  were  fully  written  by 
Mr.  Porter. 

The  affidavit  of  John  Thorn  stated  that  he  was  present  at 
the  taking  of  the  depositions  in  question,  and  that  Ira  Porter 
put  all  the  questions  to  the  witnesses  and  wrote  all  the  depo- 
sitions; that  Porter  appeared  to  act  as  the  attorney  for  Burtch, 
the  complainant,  in  taking  the  testimony. 

Ira  Porter  states  in  his  affidavit,  that  some  time  in  the  sum- 
mer of  1835,  Burtch,  the  complainant,  informed  him  that  de- 
positions were  to  be  taken  at  Palmer  before  Horatio  James,  a 
special  commissioner  appointed  for  that  purpose,  to  be  used 
upon  the  trial  of  a  cause  pending  in  chancery,  wherein  he  was 
complainant  and  Hannah  Hogge  and  others  were  defendants; 
that  Burtch  wished  him  to  testify  in  the  matter,   and  that  he, 
Porter,  agreed  to  attend  as  a  witness;   that  Burtch  requested 
him  to  see  something  to  the  enclosing  and  transmitting  of  the 
testimony  to  Detroit,  but  did  not  employ  him  as  counsel  or  at- 
torney; that  he  was  not  at  that  time  an  attorney  in  this  state 
or  elsewhere;  that,  at  the  solicitation  of  James,  the  commis- 
sioner, he  wrote  his  own  deposition  and  those  of  several  other 
witnesses  then  in  attendance;  that  John  Doran,  who  appeared 
to  be  interested  in  the  matter,  either  as  one  of  the  parties  or 
as  their  agent,  was  present,  and  did  not  object  to  his  writing 
the  depositions;  that  the  depositions  were  written  by  him  tru- 
ly and  faithfully,  and  were  read  to,  and  approved  of  by  the 
Vol.  I.  5 


Bunch 

vs. 
Hogge. 


34  CASES  IN  CHANCERY. 

FirstGircuit.  witnesses,  and  that  he  had  no  interest  in  the  event  of  the 
cause. 

H.  T.  Backus,  in  support  of  the  motion,  cited — Hinds  Ch., 
804,  334,  301,  324;  2  Mad.  Ch.,  412;  Js'ewl.  Ch.,  131;  2  Hoxd- 
ard's  Eq.,  591;  2  Chan.  Rep.,  393;  15  Fessaw,  380;  1  Har. 
Ch.  360. 

A.  D.  Frazer,  contra.  Cited— 3  Brown,  P.  C,  620;  1  Pe- 
ter's Rep.,  ^01;  5  John.  Ch.  Rep.,  191;  2  /<i.  249. 

The  Chancellor.  There  can  be  no  doubt  that  the  conduct 
of  the  commissioner  in  taking  these  depositions,  was  highly- 
improper. 

Thorn  in  his  affidavit  states  that  Porter  appeared  as  attorney, 
asked  all  the  questions  and  wrote  the  depositions,  and  it  is  ap- 
parent that  he  appeared  there  on  different  days,  and  when  he 
was  not  called  there  as  a  witness. 

Porter  himself  says  in  his  affidavit,  he  was  requested  by 
Burtch  to  see  to  the  inclosing  and  transmitting  the  testimony 
to  Detroit;  he  says  he  was  not  employed  as  counsel  or  attor- 
ney, and  adds  that  he  was  not  admitted  as  an  attorney  in  this 
state  or  elsewhere  at  the  time;  but  he  does  not  deny  that  he 
was  acting  as  the  agent  of  Burtch,  and  he  states  that  he  wrote 
his  own  deposition  and  several  others. 

The  certificate  of  James,  the  commissioner,  although,  per- 
haps, irregular,  yet  if  looked  into,  would  not  lead  the  court  to 
place  much  confidence  in  the  faithful   execution  of  his  duty  as 
a  commissioner.     He   says  in  his   certificate,  that  he  was  ab- 
sent from  the  room  a  part  of  the  time  during  the   examination 
of  the  witnesses  and  the  writing  of  the  depositions.     The  pro- 
ceedings in   taking   these  depositions   were  clearly  irregular. 
{See  2  Chan.  Rep.,  399;  Hinds,  C/i.,344,  348;   15  Ves.,  380.) 
But  it  is  urged  that  the  irregularities  in  taking  the  deposi- 
tions are  waived  by  the  defendants  having  taken  further  steps 
in  the  cause,  and  the  case  of  Skinner  vs.  Daton  et.  at,  5  Johns. 
Ch.  Rep.,  191,  is  relied  on  asauthority  to  support  this  position. 
That  was  a  case  where  the  notice  to  take  testimony  was 


CASES  IN  CHANCERY.  35 

claimed  to  be  insufficient;  no  want  of  fairness  in  the  execu- ^''■^' *^''''^""- 
tion  of  tlie  commission   was   complained  of,  and  three  terms      uurich 
had  been  suffered  to  elapse  after  notice  to  take  testimony  had     Hogge. 
been  given.     An  offer  to  cure  the  defect  of  notice  had  been 
made  and  declined,  and  the  cross  examination  of  the   witness 
had  been  expressly  waived.     This  was  a  very  different  case 
from  the  one  now  under  consideration. 

The  case  cited  in  3  Brown's  Rep.,  620,  was  a  case  on  appeal, 
and  the  depositions  had  been  used  at  the  hearing  in  the  court 
below.  In  the  case  of  1  Peter's  Rep.,  307,  the  deposition  had 
been  read  without  objection  at  the  hearing;  but  the  judge  in 
that  case,  says:  "if  the  objection  had  been  made  to  the  ad- 
mission of  the  deposition  at  the  hearing,  it  ought  not  to  have 
prevailed,  because  the  opposite  party  appeared  and  cross-exa- 
mined the  witness.  In  this  case  it  was  a  question  of  regu- 
larity merely,  and  there  was  no  pretence  of  impropriety  or 
unfairness  in  taking  the  deposition. 

Courts  have  always  looked  with  jealousy  upon  proceedings 
of  this  kind,  and  guarded,  with  great  care,  the  rights  of  the 
parties  against  imposition  and  fraud;  and  under  our  practice, 
where  depositions  are  genei'ally  taken  without  interrogatories 
being  filed,  it  seems  almost  indispensable  to  the  ends  of  justice, 
that  this  court  should  scrutenize  well  the  proceedings  in  taking 
depositions  before  it  permits  them  to  be  read  as  evidence.  I 
should  feel  great  reluctance  in  deciding  this  case  upon  testi- 
mony taken  as  losely  as  this  seems  to  have  been. 

In  3  Atk.  Rep.,  812,  although  the  affidavits  had  been  read, 
the  court,  for  the  reason  that  the  depositions  had  been  unfairly 
taken  and  for  other  reasons  there  appearing,  dismissed  the  pro- 
ceeding with  costs,  to  come  out  of  the  pocket  of  the  solicitor 
who  had  unfairly  taken  the  depositions. 

It  seems  that  courts  of  equity  do  take  notice  of  errors  of 
the  kind,  here  complained  of,  at  any  stage  of  the  proceedings 
in  the  cause  before  hearing. 

The  depositions  taken  in  this  case  must  be  suppressed. 

But  as  in  the  case  of  Shaw  vs.  Linsday,  15  Ves.,  384,  if  it 
should  happen  that  the  witnesses  could  not  be  examined  agajn, 


36  CASES  IN  CHANCERY. 

Firstcircuit.  i^jg  order  does  not  go  to  the  length  of  preventing  the  court's 
^^'^i^^  directing,  hereafter,  that  the    depositions  may  be  opened  if 
Hogge.     necessity  should  require  the  rule  to  be  dispensed  with. 
Depositions  suppressed^ 

A  new  order  was  obtained  to  take  testimony,  and  the  testi- 
mony having  been  taken  and  returned,  the  cause  came  on  for 
final  hearing. 

A.  D.  Frazer,  for  complainant. 

Inadequacy  of  price,  unless  it  amounts  to  conclusive  evi- 
dence of  fraud,  is  not,  of  itself,  a  sufficient  ground  for  refusing 
a  specific  performance.  Although  this  was  a  case  of  an  auc- 
tion sale,  the  opinion  was  pronounced  on  the  general  doctrine. 
{Hatch  vs.  Hatch,  9  Vesey,  292.) 

In  another  case  the  chancellor  declined  giving  an  opinion  on 
this  doctrine.  {Mortlock  vs.  Butler,  10  Vesey,  292;  Western 
vs.  Russell,  3  Ves.  8f  Beam's,  187.) 

In  another  case  it  was  expressly  ''held  on  a  bill  for  specific 
performance,  that  if  the  parties  bargained  with  their  eyes  open, 
and  without  imposition  or  surprise,  mere  inadequacy  of  price 
was  not  of  itself  sufficient  to  prevent  the  court  from  adminis- 
tering its  usual  equity."     {Colyer  vs.  Brown,  I  Cox,  428.) 

This  say  the  court  of  errors  in  the  state  of  New  York  in  a 
similar  case:  "is  the  doctrine  of  common  sense  and   common 
honesty,  for  it  may  be  asked  with  propriety,  what  right  have 
we  to  sport  with  the  contracts  of  parties  fairly  and  deliberate- 
ly entered  into,  to  prevent  them  from  being  carried  into  effect'?" 
The  court  farther  say,   "  much  property  is  held  by  contract, 
purc\ia,ses  are   constantly  made  on  speculation,  the  value  of 
real  estatb  is  constantly  fluctuating,  and  in  such  matters  there 
most  generally  exists  anjionest  difference  of  opinion  in  regard 
to  any  bargain,  as  to  its  being  a  beneficial  one  or  not.      To 
say,  when  all  is  fair,  and  the  parties  deal  on  equal  terms,  that 
a  court  of  equity  will  not  interfere,  does  not  appear  to  me  to 
be  supported  by  authority."     [Seyinour  vs.  Delancy,  3  Cowen, 
532;  King  and  others  vs.  Hamilton  and  others,  4  Peters  R.,  328; 
Day  vs.  J^ewman,  2  Cox,  77;    Willan  vs.  JVillan,  16  Ves,,  83.) 


CASES  IN  CHANCERY.  37 

WooDCRiDGE  and  Backus,  for  defendants.  Firstcircuit. 


Burtch 
vs. 


H.  T.  Backus. 

The  specific  execution  of  agreements  in  a  court  of  chan-  ""^^^ 
eery,  is  not  ex  debeto  justitice.  [Jlltorney  General  vs.  Day,  1 
Ves.y  219.)  But  a  bill  for  the  specific  performance  of  an  agree- 
ment, (even  where  the  agreement  is  in  writing,)  is  addressed 
to  the  sound  discretion  of  the  court,  in  the  exercise  of  its  ju- 
risdiction. [Seymour  vs.  Delancy  and  others,  6  Jolin.  Ch.  R., 
222.)  If  its  specific  performance  is  refused,  the  party  loses  no 
right,  for  the  only  remedy  to  which  the  party  has  a  right,  is 
his  remedy  at  law  for  damages  for  the  breach  of  contract. 

An  agreement  (even  in  writing,)  must  be  certain,  specific, 
mutual,  and  for  an  adequate  consideration  to  be  specifically 
performed.  {\  jMad.  Ch.  /?.,  423;  Parhurst\5.  Van  Cortland, 
1  John.  Ch.  R.,  273;  Benedict  vs.  Lynch,  Id.,  370.)  Where  the 
agreement  is  uncertain,  the  court  will  refuse  a  specific  perfor- 
mance. (1  J\Iad.  Ch.  R.,  426;  2  S.  andLef.,  7,  553;  Js'^eicland 
on  con.,  151;  Brownly  vs.  Zefftees,  2  Vernon,  415.)  Where 
there  is  any  doubt  as  to  the  identity  of  the  lands  to  which  a 
contract  relates,  a  court  of  equity  ought  not  to  decree  a  spe- 
cific performance.  {Graha77ivs.  Hend7'e7i,  5  JMunf.,  185;  Cal- 
verly  vs.  WiUia7ns,  1  Ves.  Jr.,  210.)  A  contract  must  be  so 
precise  that  neither  party  can  misunderstand  it,  or  it  will  not 
be  specifically  performed  by  chancery,  but  the  parties  will  be 
left  to  their  remedies  at  law.  [Cohon  vs.  Thompson,  2  Wheat., 
.336.) 

Inadequacy  of  consideration,  (even  in  the  absence  of  all 
fraud,)  is  a  sufllicient  reason  for  refusing  a  specific  performance, 
for  an  agreement  must  be  just  and  fair  in  all  its  parts,  otherwise 
a  specific  performance  will  not  be  decreed.  [Sey77iour  \s.  De- 
lancy,G  John.  Ch.  R.,222;  Clethei-al  vs.  Ogilvie,  1  Dessau.,  275.) 
A  court  of  chancery  will  refuse  a  specific  performance  where 
the  price  of  sale  is  very  low.  (1  Mad.  Ch.,  425;  3  Broic7i 
C.  C,  228;  2  Cox,  77;  ^Teioland  on  contracts,  66;  10  Ves., 
592;  1  Ves.,  279;  Fonhlan  Eq.,  234;  3  Ves.  a7id  Beam,  192-3.) 
Even  a  contract  will  be  rescinded  and  conveyance  set  aside  for 
inadequacy  of  consideration.    (Sugden  laiv  of  vendors,  170,-171 ; 


38  CASES  IN  CHANCERY. 

First  Circuit.  2  Bi'owii^ s  C.  C,  150;   1  Vernon,  465;  1  Brown's  C.  C,   176; 
^^^^^^^^^  6  John.  Chan.  Rep.,  222.)     Inadequacy  of  price  is  often  (even 


vs. 


in  the  absence  of  all  fraud)  the  ground  of  refusing  a  decree 
for  specific  performance,  though  not  sufficient  of  itself  to  in- 
duce the  court  to  set  aside  an  executed  agreement,  but  the 
court  will  leave  the  parties  to  their  remedy  at  law.  (Osgood 
vs.  Franklin,  2  John.  Chan.  R.,  23;  14  John.  R.  on  appeal,  527; 
1  Vern.,  472;  Azvbry  ys.  Keen,  Chan.  Cas.  19;  1  Dessau.,  250.) 
Nor  will  a  court  of  chancery  decree  a  specific  performance 
against  a  widow  entitled  to  dower.  {Sugden  law  of  vendors, 
142.) 

But  where  an  agreement  is  certain  and  for  an  adequate  con- 
sideration, to  be  specifically  performed  by  the  decree  of  a 
court  of  chancery,  it  must  be  in  accordance  to  the  forms  pre- 
scribed by  law.  (1  Mad.  Chan.,  372;  3  Fes.,  420;  3  Jltkins, 
385;  1  Veseij,  279;  1  Eden.,  323.)  The  statute  requires  all 
agreements  touching  lands  to  be  in  writing.  In  this,  equity 
follows  the  law.  A  letter  or  receipt  may  be  sufficient  wri- 
ting within  the  statute;  but  it  must  specify  all  the  terms  of  the 
contract.  The  most  trifling  omission  is  fatal;  {Sugden  law 
vendors,  45,  48;)  for  an  agreement  cannot  rest  partly  in  wri- 
ting and  partly  in  parole.  (1  John.  Ch.  R.,  131,  272.)  It  is 
insisted  that  the  case  in  hand  is  taken  out  of  the  operation  of 
the  statute  by  part  performance;  this  exception  (of  part  per- 
formance) to  the  operation  of  the  statute  is  viewed  with  ex- 
treme jealousy,  and  properly  so,  by  courts,  as  tending  to 
relax  a  salutary  rule  of  law,  and  open  a  door  for  all  the  frauds 
the  statute  was  intended  to  guard  against.  {Foster  vs.  Hale,  3 
Ves.,  712,  382. )  Part  or  full  payment  of  the  purchase  money, 
(even  on  full  and  distinct  proof  of  parole  agreement,)  is  not  such 
a  compUance  with  the  spirit  of  the  statute  as  a  court  of  chan- 
cery will  recognize  and  carry  into  execution.  (1  J\Iad.  Ch., 
381;  2  Des.,  190;  Lord  Pangall  vs.  Ross,  2  Equity  Ah.,  46; 
Leah  vs.  Morris,  2  Chan.  Ca.,  135;  vide.  Lord  Redesdales  re- 
marks in  the  case  of  Clenan  vs.  Cook,  1  Sch.  and  Lef.,  40.) 
Where,  he  says,  payment  of  purchase  money  will  in  no  case 
amount  to  a  part  performance,  nor  will  giving  directions  for 


CASES  IN  CHANCERY.  39 

conveyances,  deeding  estate,  «fec.,  take  a  case  out  of  the  sta- Fint crcuit. 
tute.  {Clark  vs.  Wright,  1  Ath.,  12;  IVhaley  vs.  Bagnall,  G  ^^^^ 
Brown  C.  C,  45;   Gwins  vs.  Calder,  2  Dessau.,  190.)  Hogge. 

To  take  a  case  out  of  the  operation  of  the  statute  on  the 
ground  of  part  performance,  the  existence  of  the  contract  as 
laid  in  the  bill  must  be  made  out  by  clear  and  unequivocal 
proof,  and  the  acts  of  part  performance  must  be  of  the  identi- 
cal agreement  set  up.  {Phelps  vs.  Thompson,  1  John.  C.  R.,  131, 
149;  Parhurst  vs.  Van  Cortland,  273,  284-5.)  It  is  not  suffi- 
cient that  the  act  is  evidence  of  some  agreement,  but  it  must 
show  unequivocally,  the  existence  of  the  particular  agreement 
set  forth  in  the  bill,  and  that  that  very  agreement  was  in  part 
executed.     {Lindsay  vs.  Lynch,  2  Schols.  and  Lef.  8.) 

W.  WooDBRiDGE. — Certainty  in  a  contract  is  essential;  if 
uncertain,  a  specific  execution  will  be  refused.  (1  J.  C.  R., 
273,  131;  14  Johns.  R.,  15;  7  /.  C.  R.,  13;  1  Mad.,  336-7; 
1  Vern.,  406;  5  Munf.,  185.) 

Equity  will  not  compel  a  specific  execution,  unless  when 
essential  to  justice.  {Mitf.  PL,  119.)  A  hard  bargain  mere- 
ly, therefore,  will  not  be  opened,  especially  as  to  infant  heirs. 

'^Already  have  so  many  cases  been  taken  out  of  the  statute 
of  frauds,  which  seem  to  be  within  its  letter,  that  it  may  well 
be  doubted  whether  the  exceptions  do  not  let  in  many  of  the 
mischiefs,  against  which  the  statute  was  intended  to  guard. 

The  best  judges  in  England  have  been  of  opinion  that  this 
relaxing  construction  of  the  statute  ought  not  to  be  extended 
further  than  it  has  already  been  carried,  and  this  court  entire- 
ly concurs  in  that  opinion.*'  (4  Cranch,  224;  2  Peters  Cond. 
Rep.,  96;  1  Mad.,  302-3;  3  Ves.,  712;  6  Ves.,  32,  37;  bMunf., 
185,  318.)  In  such  cases  the  complainant  should  be  left  to  seek 
his  remedy  at  law.     (1  Wheat.,  197.) 

Part  performance  implies  a  fraud  on  the  opposite  party. 
{See  Story's  Eq.,  66,  74;  1  J.  C.  R.,  149.)  Payment  is  no  part 
performance.     (2  Stori/s  Eq.,  64-5;  5  Munf.,  317.) 

The  Chancellor. — The  bill  in  this  case  is  filed  to  compel 


40  CASES  IN  CHANCERY. 

First  circuit,  the  specific  performance  of  a  special  contract  to  convey  land. 
Burtch     Two  questions  arise  for  the  consideration  of  the  court. 
Hogge.  First.  Has  there  been  such  a  contract  proved  as  will  enable 

this  court  to  decree  a  specific  performanceT  and, 

Second.  Has  there  been  such  a  part  performance  as  will  take 
Ihe  case  out  of  the  statute  of  frauds. 

That  there  was  an  agreeinent  or  contract  for  the  sale  of 
some  portion  of,  or  interest  in  the  McNiel  tract  (so  called)  at 
the  mouth  of  Black  river,  in  St.  Clair  county,  by  Robert  Hogge 
to  Jonathan  Burtch,  cannot  admit  of  a  doubt.  Several  receipts 
have  been  produced  by  Burtch,  in  which  Hogge  acknowledges 
the  receipt  of  money  to  apply  as  payments  on  the  land  sold  by 
him  to  Burtch.  Although  these  written  receipts  do  not  show 
W'hat  the  contract  w^as,  they  are  evidence  of  some  contract  be- 
tween the  parties  respecting  the  sale  and  purchase  of  land; 
and  it  is  pretty  clearly  shown  by  Hogge's  acknowledgments, 
that  he  had  sold  to  Burtch  his  undivided  interest  of  between 
seven  and  eight  acres  of  land  in  the  McNiel  tract,  (reserving  to 
himself  one  half  acre,)  for  the  sum  of  $130. 

Testimony  on  the  part  of  the  complainant. 

WiUiam  H.  Carleton  states,  that  he  '•  heard  Hogge  say  in 
1832,  that  he  had  sold  all  his  lands  at  the  mouth  of  Black  ri- 
ver, except  half  an  acre,  to  Burtch,  who  had  pretty  much  paid 
all  up  for  the  same.*'  Previous  to  this,  heard  Hogge  saying 
"  that  he  had  bought  at  the  mouth  of  Black  river,  seven  acres 
or  seven  acres  and  some  hundredths  of  an  acre." 

Harman  Chamberlain  states  that  he  received  $45  from  Burtch 
in  July,  1832,  to  pay  to  Hogge  for  land  purchased  by  Burtch 
formerly  from  Hogge,  which  he  paid  accordingly.  Proves  the 
execution  of  Hogge's  receipt  for  $85;  also  a  receipt  for  $36, 
and  two  receipts  for  $23,  by  Hannah  Hogge.  Heard  Hogge 
say  "  that  he  had  sold  a  part  of  his  interest  in  his  lands  at 
Black  river,  about  seven  acres,  to  Burtch;  understood  it  to  be 
of  the  lands  purchased  by  him  from  E.  P.  Hastings.  This  was 
in  the  fall  or  winter  of  1831."  That  Burtch  was  in  possession 
before  the  death  of  Hogge;  that  Burtch  has  erected  upon  said 
land,  since  the  death  of  Hogge,  a  store,  tavern-house  and  one 


CASES  IN  CHANCERY.  41 

barn,  the  value  of  which  he  believes  to  be  about  $2,500 — and  Firsiarcuit. 
Were  erected  from  4  to  5  years  since;  that  Hannah  Hoarse  '"■^^'^^^ 

•'      _  '  o&  Bunch 

asked  him  whether  she  had  a  ri^ht  or  ounrht  to  give  a  deed  to     „  "• 

<-  o  o  Hoggc. 

Burtch  of  the  land,  she  being  the  administratrix;  that  Hogge's 
deed  was  given  to  Burtch  to  take  to  Detroit  to  have  the  ne- 
cessary papers  made  out  to  obtain  a  deed;  that  Burtch  has 
continued  in  possession,  where  he  built,  ever  since;  that  Hogge 
when  he  purchased  of  Hastings,  supposed  that  he  had  pur- 
chased 30  acres,  and  was  then  ignorant  of  the  Hasten  claim; 
understood  that  the  sale  from  Hogge  to  Burtch  consisted  of 
seven  acres,  and  that  it  was  an  undivided  interest;  estimates 
the  seven  acres  in  1831,  at  8500;  considered  Hogge  an  intelli- 
gent man  and  as  capable  of  estimating  the  worth  of  property 
as  most  men. 

Israel  Carleton  testifioo  that  Hogge  told  him,  that  he  iiad 
purchased  a  part  of  the  McNiel  tract  in  company  with  a  Mr. 
Sales;  has  heard  him  say  that  he  had  sold  his  interest,  ex- 
cept half  an  acre,  to  Burtch,  and  had  made  about  $90  in  the 
trade;  heard  him  say  this  in  various  conversations  in  1832; 
the  lands  referred  to  are  near  the  mouth  of  Black  river;  testi- 
fies to  the  payment  of  -$40  on  the  purchase,  and  proves  the  re- 
ceipts of  Robert  and  Hannah  Hoggc;  that  the  land  sold  to 
Burtch  by  Hogge,  was  an  undivided  interest,  reserving  half  an 
acre. 

Edmund  Carleton  says,  that  in  the  summer  of  1832,  in  con- 
versation with  Hogge  respecting  a  payment  to  be  made  by  him 
and  Hogge  jointly,  Hogge  stated  that  he  expected  to  receive 
$80  or  $90  from  Burch,  in  part  payment  for  some  lands  sold 
him  at  the  month  of  Black  river;  said  that  the  lands  were  un- 
divided, that  he,  Hogge,  had  reserved  half  an  acre. 

Ira  Porter  testifies  that  he  heard  Hogge  speak  of  his  pur- 
chase in  December,  1831;  that  the  interest  was  an  undivided 
interest,  and  purchased  jointly  with  Edward  Sales,  and  was  a 
portion  of  the  McNiel  tract,  situated  at  the  mouth  of  Black 
river;  sometime  in  January  or  February,  or  there  about,  of 
1832,  Hogge,  in  conversation  with  Harrington  and  others,  said 
that  he  had  sold  out  his  interest  in  the  McNiel  tract  to  Burtch, 

Vol.  I.  6 


42  CASES  IN  CHANCERY; 

First  circuit,  reserving  half  an  acre,  for  $140  or  $150;  in  the  spring  of  1832, 
'"^'^''^^^  Hoffffe  requested  him.  Porter,  to  make  out  a  conveyance,  and 

Burtch  "^  '■ 

Holge.  he  did  so  accordingly,  and  gave  it  to  Hogge;  it  was  prepared 
in  exact  accordance  with  Hogge's  instructions,  and  was  read 
to  him,  and  no  fault  found  with  it;  he  paid  witness  for  draw- 
ing it;  estimates  the  value  of  improvements  made  by  Burtch 
and  his  assignees,  between  the  date  of  the  purchase  and  the 
commencement  of  this  suit  at  between  $1,800  and  $2,500; 
Burtch  and  his  assigns,  have  been  in  possession  ever  since  the 
purchase;  thinks  the  white  store  was  erected  after  the  date  of 
the  deed;  Burtch  rented  to  Sampson. 

John  S.  Heath  says  that  in  June  or  July,  1832,  he  had  a  con- 
versation with  Robert  Hogge,  who  then  told  him  that  he  had 
formerly  an  interest  in  six  or  seven  acres  of  land  at  the  mouth 
of  Black  river,  but  had  sold  the  saint;  to  Eurtoh,  reserving  half 

an  acre. 

Jeremiah  Harrington  testifies  that  in  the  year  1832,  Robert 
Hogge  told  him  that  he  had  sold  to  Burtch,  all  but  half  an  acre 
of  the  land  which  he  had  bought  in  the  McNiel  tract,  and  had 
received  his  pay  in  full  for  it;  it  was  from  seven  to  eight  acres; 
had  two  conversations  with  Hogge,  in  which  he  said  the  same 
thing. 

Jacob  Miller  states,  that  1832,  he  had  a  conversation  with 
Hogge  about  the  purchase  of  half  an  acre  of  land.  Hogge 
told  him  he  had  sold  to  Burtch,  his  land  in  the  McNiel  tract, 
reserving  half  an  acre;  thinks  it  was  seven  acres  which  Hogge 
said  he  had  sold;  Hogge  said  he  had  received  some  part  of 
his  pay;  had  more  than  one  conversation  with  him  on  the 
subject,  one  of  which  was  in  May,  1832;  knows  that  Burtch 
was  in  possession  of  some  part  of  the  McNiel  tract  a  year  be- 
fore this  conversation. 

John  Thorn  states,  that  Robert  Hogge  called  upon  him  to 
make  out  a  deed  to  Burtch  for  some  portion  of  the  McNiel 
tract,  and  had  his  papers  with  him.  It  was  some  certain  in- 
terest with  the  reservation  of  half  an  acre;  Hogge  refused  to 
leave  the  papers  on  account  of  the  price  the  witness  would 


CASES  IN  CHANCERY.  43 

charge  for  making  the  deed;   Hogge's  deed  was  from  Eurotas  r'l"^ circuit. 
P.  Hastings,  who  derived  title  from  Sibley  and  Kearsley.  Burtcii 


Defendant's  witness. 

John  Thorn  testifies,  that  he  had  a  conversation  with  Hogge 
in  1831  or  1832,  about  making  out  a  deed  from  him  to  Burtch, 
for  some  certain  interest  which  he  had  sold  to  Burtch  in  the 
McNicl  tract,  at  the  mouth  of  Black  river;  it  was  an  undivi- 
ded interest  which  Hoggc  wished  to  convey;  that  Hogge  pro- 
duced the  patent  to  Solomon  Sibley,  and  a  transfer  by  Sibley, 
and  also  by  Jonathan  Kearsley  as  the  administrator  of  the  estate 
Edward  Prucell,  to  E.  P.  Hastings,  and  a  transfer  from  Has- 
tings and  wife,  to  Hogge;  that  he.  Thorn,  could  not  understand 
from  Hoggc  how  much  intei-est  he  wished  to  convey  to 
Burtch;  that  Hogge  intended  to  reserve  soujething  more  than 
half  an  acre;  that  Hogge  gave  him  to  understand,  that  the 
reservation  which  he  wished  to  make  was  subject  to  litigation 
for  the  reason  that  he,  Hogge,  had  been  induced  to  believe,  by 
those  of  whom  he  purchased,  that  he  had  purchased  a  sixth 
instead  of  a  third  part;  that  he.  Thorn,  advised  Hogge  that  it 
appeared  from  his  papers  that  he  had  purchased  a  third  instead 
of  a  sixth  part;  that  he.  Thorn,  did  not  make  out  the  deed  in 
consequence  of  the  uncertainty  of  the  amount  of  interest  to 
be  conveyed  and  the  price  which  he  charged  for  making  the 
proper  investigation  and  the  deed;  that  Burtch  was  living  on 
the  McNiel  tract  previous  to  Hogge's  purchasing  any  interest 
therein;  that  he  estimates  the  value  of  the  land  in  the  McNiel 
tract  in  1832,  with  a  clear  title,  at  $10  per  acre;  at  this  time 
$500  per  acre. 

On  his  cross-examination  says:  the  original  patent  of  the 
McNiel  tract,  containing  about  ninety  acres,  was  to  Solomon 
Sibley;  it  appeared  by  the  papers  shown  by  Hogge,  that  Sib- 
ley purchased  for  himself  and  two  others;  that  one  of  them 
was  Edward  Prucell;  that  PrucelFs  interest  appeared  to  have 
been  sold  to  E.  P.  Hastings,  by  Kearsley,  who  was  Purcell's 
administrator;  that  Sibley's  interest  also  had' been  sold  to 
Hastings;  that  Hogge  derived  his  title  through  Hastings;  that 
after  Hoggo  had  purchassed  Prucell's   third,  as  he  supposed, 


vs. 
Hogge. 


44  CASES  IN  CHANCERY. 

Firstcircuit.  and  paid  his  money  therefor,  those  from  whom  he  had  pur- 
'^-^"-^'^^^  chased  endeavored  to  persuade  him  that  he  had  purchased  only 

Burtch  ,   .     ,       TT  -11  •  L       it- 

„^'-  a  sixth  instead  of  a  third;  Hogge  said  the  reason  given  by  the 
persons  from  whom  he  derived  title,  why  he  had  not  purchased 
a  third,  was,  that  Prucell  had  sold  a  part  of  his  interest  to 
Hasten;  that  he,  Thorn,  saw  the  original  articles  of  agree- 
ment between  Prucell  and  Hasten,  at  General  Larnard's  office, 
in  Detroit,  subsequently  to  Hogge's  purchase;  that  he  believes 
the  articles  were  signed  by  both  Prucell  and  Hasten;  it  was 
an  agreement  to  convey  half  of  Prucell's  interest  in  the  Hc- 
Neil  tract,  and  the  one  half  of  other  lands. 

It  is  proven  by  several  witnesses  that  Hogge,  in  his  life 
time,  stated  that  he  had  sold  about  seven  acres;  and  nearly  all 
the  witnesses  speak  of  this  as  the  quantity,  i-eserving  to  him- 
self half  an  acre. 

Thorn  says  that  he  did  not  understand  what  the  interest  was 
which  was  reserved;  that  it  was  half  an  acre  and  something 
more,  and  that  it  was  subject  to  litigation.  I  think  Thorn's 
deposition,  together  with  the  testimony  of  the  other  witnesses, 
explains  the  difficulty. 

It  appears  that  nearly  all  the  witnesses  understood  the  inte- 
rest sold  to  have  been  seven  acres.  From  the  deposition  of 
Israel  Carleton  it  appears  that  the  purchase  was  made  by 
Hogge  and  a  Hr.  Sales;  from  the  deposition  of  Hr.  Thorn, 
that  it  was  a  matter  of  doubt  and  dispute  whether  they  had 
purchased  the  one  third  or  one  sixth.  They  at  first  supposed 
it  to  have  been  one-third,  but  it  afterwards  appeared  that  there 
was  an  outstanding  contract  made  by  Prucell,  to  convey  one 
half  of  his  interest  to  a  man  by  the  name  of  Hasten.  This,  I 
think,  explains  the  seeming  discrepancy,  and  shows  clearly 
that  the  understanding  of  the  witnesses  that  the  interest  which 
was  to  be  conveyed,  was  seven  acres,  and  that  the  i-eservation 
was  to  be  something  more  than  the  half  acre,  and  that  it  was 
subject  to  litigation.  And  Hogge's  objection  to  signing  the 
deed  is  also  explained. 

It  is  hardly  possible  that  so  many  witnesses  can  be  mistaken 
as  to  the  amount  of  interest  to  be  conveyed.     It  is  apparent  to 


CASES  IN  CHANCERY.  45 

my  mind  that  Hogge  intended  to  convey  to  Burtch  the  seven  First  circuit. 
acres;  to  reserve  to  himself  all  ihe  right  which  he  had  to  the      ^^^rh 
other  sixth,  claimed  by  Hasten.     The  land  containing  ninety-     Hogge. 
one  acres  and  forty-one  hundredths,  it  seems  by  the  testimony, 
was  originally   divided  into  three  shares,  making    thirty-one 
acres  and  forty-six  hundredths  each.     One  half  of  this  share, 
which  was  asserted  to  belong  to  Hogge,  as  appears  by  Thorn's 
deposition,  had  been  contracted  to  Masten  by  Prucell,  which 
would   leave,   if  the  contract   should  prove   a   valid  one,  fif- 
teen acres  and  twenty-three  hundredths  as  the  part  belong- 
ing to  the  estate  of  Prucell.     This,  it  appears,  was  purchased 
by  Hogge  and  Sales  together.     This,  then,  would  leave,  with- 
out reference  to  the  disputed  one-sixth,  alledged  to  have  been 
contracted  to  Masten,  the  seven  acres  testified  to  by  the  wit- 
nesses, and  the  reservation  of  the  half  acre  and  a  small  fraction 
over,  to  Hogge.     And  this  substantially  and  satisfactorily  ex- 
plains the  whole  of  the  evidence. 

From  all  the  evidence  in  the  case,  I  think  it  clear  that  Hogge 
had  sold  his  undivided  interest  of  seven  acres  in  the  McNiel 
tract  to  Burtch,  reserving  to  himself  all  over  the  seven  acres, 
supposing  it  to  be  about  a  half  an  acre. 
Second.  As  to  the  part  performance. 

It  appears  clearly  by  the  proofs  in  this  case,  that  a  principal 
part  of  the  purchase-money  was  paid  to  Hogge  in  his  lifetime, 
and  that  the  balance  was  paid  to  Hannah  Hogge,  his  wqdow, 
who  was  administratrix  of  his  estate,  soon  after  his  death. 

The  question,  whether  the  payment  of  the  purchase-money, 
is  such  a  part  performance  of  a  parole  contract  to  convey  land, 
as  will  take  it  out  of  the  statute  of  frauds,  seems  to  be  as  yet 
unsettled.  But  the  case  does  not  turn  on  this  point  alone.  It 
has  been  proved  that  Burtch  was  in  possession  of  a  portion  of 
the  McNiel  tract  at  the  time  he  purchased  of  Hogge,  and  that  he 
has  ever  since  remained  in  possession;  that  he  had  made  valu- 
able impi'ovements  on  the  same  after  his  purchase  from  Hogge, 
and  before  the  commencement  of  this  suit;  that  these  improve- 
ments were  worth  from  $1,800  to  $2,500. 

There  is  some  doubt,  perhaps,  as  to  the  time  some  portion 


46  CASES  IN  CHANCERY. 

First  Circuit,  of  the  improvements  were  made;  but  that  the  most  valuable 
^"^^^^^^  and  expensive  were  made  after  the  purchase  by  Burtch  from 
Hogge.     Hogge,  there  can  be  no  doubt. 

The  payment  of  the  purchase  money,  the  possession,  and 
the  improvements  made  by  Burtch  since  the  purchase,  I  think, 
are  clearly  sufficient  to  take  this  case  out  of  the  statute  of 
frauds.  (1) 

It  has  been  urged  that  there  was  such  an  inadequacy  of  price 
that  this  court  will  not  decree  a  specific  performance. 

Inadequacy  of  price,  where  it  is  so  gross  and  palpable  as  of 
itself  to  afford  evidence  of  actual  fi'aud,  may  be  sufficient  to 
induce  this  court  to  stay  the  exercise  of  its  discretionary  pow- 
er to  enforce  a  specific  performance,  and  leave  the  party  to 
his  remedy  at  law;  but  inadequacy  of  price  merely,  without 
being  such  as  to  prove  fraud  conclusively,  is  not  a  good  objec- 
tion against  decreeing  a  specific  performance.  {See  Setjmour 
vs.  Delancy,  on  appeal,  3  Coiven,  445,)  where  all  the  authori- 
ties upon  this  subject  are  collected. 

The  value  must  be  taken  at  the  time  the  contract  was  made. 

There  is  some  discrepancy  in  the  testimony  as  to  the  value 
of  the  land  at  that  time.  Chamberlain,  in  his  testimony,  esti- 
mates its  value  in  1831  at  $500.  Thorn,  in  his  deposition  taken 
by  the  defendants,  estimates  the  lands  in  this  tract  in  1832, 
with  a  clear  title,  at  #10  per  acre,  making  $70  for  the  seven 
acres.  The  price  agreed  upon  was  $150.  Where  witnesses 
vary  so  much,  with  equal  opportunities  of  judging,  it  would 
certainly  be  going  very  far  for  this  court  to  come  to  the  con- 
clusion that  there  is  any  such  inadequacy  in  the  price,  which 
the  parties  themselves  have  agreed  upon,  as  to  amount  to  fraud, 
when  it  appears,  too,  that  Hogge  sold  at  an  advance,  although 
he  only  retained  the  lands  from  December  to  May  following. 

(1)  See  2  Story's  Eq.,  02,  76;  Miller  vs.  Haicler,  2  Rawle,  53;  Eckert  vs.  Eckert,  3;  Penns.,  332; 
Stewart  vs.  S'ewart,  3  Walls,  258;  Wilbur  vs.  Paine,  1  Ham.,  253;  Waggoner  vs.  Speck,  3  f/am., 
293;  Moore  vs.  Bearslcy,  3  Ilam.,  '..9J;  Marks  vs.  Pell,  1  JoliTis.  Ch.,  594;  Strong  vs.  Stewart,  4 
Johns.  Ch.,  167;  Washburn  vs.  Merrills,  1  Day,  139;  Daniels  vs.  Alcord,  2  Root,  196;  Ross  vs.  JSow- 
ell,  1  Wash.,  15;  Walkins  vs.  Stockett,  0  Har.  fy  McHen.,  21;  Wilcox  vs.  Morris,  1  Murph.,  117; 
Wilcoz  vs.  Carver,  1  Hayw.,  93;  Bellon  vs.  Avery,  2  Root,  279;  Whecland  vs.  Swartz.  1  Yates,T49  ; 
Mackey  vs.  Brownjield,  13  Serj.  ^  Rawle,  239;  Crocker  vs.  Biggins,  7  Conn.,  312;  Cahot  vs.  Tfas- 
kins,  3  Pick.,  95;  Freeport  vs.  Bartol,  3  Greenl.,  34U;  Doicney  vs.  Hotchkiss,  2  Day,  225;  Wet- 
more  vs.  White,  2  Caine's  Ca.,  87,  a  leading  case;  Phillips  vs.  Thompson  1  Johns.  Ch.,  131; 
Townsend  vs.  Sharp,  2  Overton,  192;  Hickman  vs.  Grimes,  1  Marsh.,  86;  Thompson  vs.  Todd,  1 
Pfters  S.  C,  385;  Bassler  vs.  Nicrly,  2  Serg.  fy  Rawle,  3,-5;  Jrnies  vs.  Pcterman,  3  Scrg.  If 
Rawle,  546;  Meach  vs.  Stone,  1  Chipman,  182.  !  =>    ^ 


CASES  IN  CHANCERY.  47 

The  prayer  of  tlie  bill  must  be  granted  or  refused.     Here  is  Firstcircuit. 
payment  for  the  lands,  all  the  possession  of  which  the  subject     ^^^^^^ 
matter  was  capable,  and  an  expenditure,  according  to  the  tes-     nogge. 
timony  of  Chamberlain,  of  $2,500,  and  according  to  Porter's 
deposition,  of  from  $1,800  to  $2,500. 

The  fact  that  the  lands  on  which  the  improvements  were 
made  were  undivided,  would,  perhaps,  be  entitled  to  some  con- 
sideration. But  it  is  not  to  be  believed  that  Burtch  made  these 
expensive  improvements  without  reference  to  his  interest  in 
the  lands,  relying  upon  obtaining  an  allowance  therefor  on  a 
division  with  the  other  owners.  There  may  be  some  doubt  as 
to  whether  the  eleven  hundredths  over  the  half  acre  were  to 
be  retained  by  Hogge,  or  conveyed  to  Burtch.  But  the  wit- 
nesses most  of  them,  designate  the  quantity  at  seven  acres,  and 
as  the  remainder  would  be  so  near  the  half  acre,  it  would  na- 
turally be  mentioned  as  a  half  acre. 

The  decree  must  be  for  a  conveyance(2)  of  Hogge's  undi- 
vided interest  in  the  McNiel  tract,  of  seven  acres,  to  the  com-  - 
plainant,  reserving  to  the  heirs  and  legal  representatives  of 
Hogge,  all  other  right,  title  and  interest  which  they  may  have 
in  said  tract,  and  without  prejudice  to  the  right  of  dower  there- 
in of  Hannah  Doran,  late  Hannah  Hogge. 


(2)  The  cases  and  their  varieties  are  numerous  in  which  courts  of  equity  have  compelled 
the  performance  of  parol  agreements  to  convey  lands,  and  refused  so  to  do.  Tlie  earlier  cases 
have  been  collected  and  well  digested  in  a  note  to  Fonblank'g  Rq.,  (1  Fonbl.  Eg.,  29.;  The 
later  cases  have  been  collected  in  a  note  to  the  third  American  edition  of  IVIitford's  Pleadings. 
(See  Mit.  PI.,  119.} 


48  CASES  IN  CHANCERY, 


Henry  V.  Disbrow  vs.  De  Garmo  Jones  and  others. 

First  CSrcuit.  The  possession  of  a  tenant  is  notice  to  a  purchaser  of  the  actual  interest  the  tenant  may  have  In 
i^..^>-^^      the  premises. 

Disbrow      Insurance  is  a  personal  contract,  and  does  not  pass  with  the  title  of  the  property  insured. 


vs. 
Jones. 


This  was  a  motion  to  dissolve  an  injunction.  The  facts  in 
the  case,  as  appdar  from  the  bill,  and  answers  of  Jones  and 
John  L.  Whiting,  two  of  the  defendants,  are  as  follows : 

De  Garmo  Jones  was  owner  of  lots  No.  186  and  187,  in  sec- 
tion four,  in  the  city  of  Detroit;  and  February  1,  1832,  he  de- 
mised the  same,  with  the  w^arehouse  thereon,  to  John  L.  Whi- 
ting and  John  J.  Deming,  for  the  term  of  five  years,  at  a  rent 
of  ^600  per  year,  payable  quarterly.  The  lessees  covenanted 
in  the  lease  to  keep  the  warehouse  on  the  premises  insured 
against  loss  or  damage  by  fire,  for  not  less  than  82,500,  in  the 
name  of  and  for  the  security  and  benefit  of  Jones;  and  Jones 
covenanted  in  the  lease,  that  in  the  event  the  warehouse  should 
be  consumed  by  fire  and  from  hazards  contemplated  by  the 
policy,  he  would  re-build  it  wathin  six  months  after  its  destruc- 
tion. September  10,  1834,  Jones  endorsed  upon  the  lease  an 
agreement  to  extend  the  term  two  years  longer,  for  an  addi- 
tional sum  of  not  exceeding  $200  per  year. 

April  27,  1836,  Jones  sold  and  conveyed  the  premises  to 
Augustus  Garret,  Daniel  B.  Brown,  Nathaniel  J.  Brown,  Wil- 
liam R.  Thompson  and  George  W.  Hoffman,  for  the  sum  of 
$20,000.  The  conveyance  contained  covenants  of  seizure  and 
warrantee,  and  also  covenants  against  incumbrances.  The 
purchasers  gave  their  notes  for  $4,000  at  four  months,  and  also 
their  bond  and  mortgage  on  the  premises  for  §16,000,  payable 
in  five  equal  annual  instalments,  with  annual  interest. 

An  agreement  was  entered  into  at  the  same  time,  between 
Jones  and  his  vendees,  reciting  the  extension  of  the  term  to 
Whiting,  (who  had  purchased  the  interest  of  Deming  in  the 
lease,  and  then  occupied  and  continued  to  occupy  the  premi- 
ses up  to  the  time  of  filing  the  bill,)  stipulating  that  during  the 


CASES  liN  CHANCERY.  40 

two  years,  or  until  possession  should  be  given  up  by  Whiting,  FiratCircuit. 
Jones  should  pay  to  his  vendees  the  interest  of  the  -$20,000  in    „. , 
lieu  of  the  rents  for  that  time;  and  the  rent  was  to  be  received     jo'Jfes. 
by  the  vendees  up  to  February  1,  1837. 

"Whiting  was  at  the  same  time,  applied  to,  to  know  whether 
he  wouid  surrender  the  possession  of  the  premises  on  the  first 
of  February,  1837,  and  he  declined  doing  so,  and  stated  that 
he  should  hold  the  premises  for  the  full  term  to  which  the  lease 
had  been  erxtended,  (being  two  years  from  February  1,  1837,) 
and  all  the  vendees  were  informed  of  that  fact. 

Soon  after  the  purchase,  Garrett,  Brown  and  Brown  sold 
and  conveyed  all  their  interest  to  Thompson,  and  afterwards, 
October  21st,  1830,  Thompson  sold  and  conveyed  all  his  inte- 
rest to  Disbrow,  the  complainant,  and  in  payment  therefor.  Dis- 
brow  conveyed  to  Thompson  a  certain  tract  of  land  at  the  sum 
of  $3,200,  or  there  abouts;-gave  his  bond  in  a  penalty  of  $2,000, 
or  there  abouts,  and  gave  his  note  for  $2,070. 

December  7,  183G,  Whiting  obtained  insurance  from  the  Pro- 
tection insurance  company  on  the  warehouse,  for  82,500,  in 
his  own  name,  but  as  stated  in  his  ansvv^er  and  also  in  the  an- 
swer of  Jones,  it  was  in  fulfillment  of  his  covenant  contained 
in  the  lease,  and  for  the  benefit  and  security  of  Jones. 

April  26  and  27,  1837,  the  w^arehouse  was  burned  down,  and 
the  loss,  as  charged  in  the  bill  and  admitted  in  the  answers,  was 
within  the  policy  of  insurance,  and  the  insurance  company 
were  willing  to  pay  to  Whiting.  No  part  of  the  consideration 
money  had  been  paid  to  Jones,  except  the  one-fourth  part  of 
the  note  paid  by  Hoffinan.  and  no  part  of  the  amount  for  which 
the  bond  and  mortgage  were  given  had  ever  be^n  paid.  The 
bill  alledgcd  that  Disbrow,  on  the  27th  of  April,  1837,  tendered 
and  offered  to  pay  his  proportion,  being  three-fourths  of  the 
amount  due,  if  Jones  would  stipulate  to  give  him  possession, 
and  re-build  or  erect  another  storehouse  upon  the  premises 
within  a  reasonable  time,  and  would  also  give  him  the  propor- 
tion which  he  claimed,  (being  three-fourths)  of  the  insurance 
money.  The  answer  denies  such  tender  and  offer,  but  states 
that  Jones  then  called  on  Disbrow  for  pavmcnt  of  the  amount 

Vol.  I.  7 


50  CASES  IN  CHANCERY. 

Fiiatcircuit.  ^f  ^^g  purchase  money  then  due,  and  Disbrow  declined  paying, 
""f^^^^  saying  at  the  same  time,  he  had  not  had  possession,  and  was 
jon'es.  not  liable  to  pay  until  the  building  was  re-placed  and  the  pre- 
mises put  in  the  condition  they  were  before  the  warehouse  was 
destroyed  by  fire.  The  answer  also  stated,  that  some  conver- 
sation was  had  concerning  the  insurance,  in  which  a  claim  was 
set  up  by  Disbrow  for  a  part  of  the  insurance  money;  which 
claim  was  denied  by  Jones. 

The  answer  of  Whiting  stated  his  damages,  in  case  the  co- 
venant by  Jones,  to  re-build,  was  not  performed,  would  amount 
to  not  less  than  $2,000  per  year,  over  and  above  the  rent. 

It  was  charged  in  the  bill,  and  admitted  by  the  answer,  that 
the  building  destroyed  was  worth  more  than  $2,500,  and  that  it 
would  cost  more  than  $3,000  to  erect  one  eqHa.l.ly  valuable  and 
capacious  on  the  premises. 

April  29,  1837,  Jones  proceeded  to  foreclose  his  mortgage 
upon  the  premises,  by  advertisement;  amount  then  claimed  to 
be  due  being  $4,320,  and  the  premises  were  advertised  to  be 

sold  July  31,  1837. 

It  was  stated  in  the  bill  that  the  whole  of  the  premises  had 
had  been  advertised  for  sale  by  Jones,  for  the  first  instalment 
of  $4,320,  and  insisted  that  it  was  not  competent  to  advertise 
and  sell  more  of  the  premises  than  were  necessary  to  pay  the 
amount  of  the  purchase  money  and  interest  then  due.  In  re- 
ply to  this  statement  in  the  bill,  the  answers  stated  that  the 
premises  were  situated  on  the  Detroit  river,  at  the  foot  of 
Woodward  avenue,  being  100  feet  on  the  river  and  86  feet  on 
the  avenue,  and  derived  their  principal  value  from  being  ad- 
vantageously situated  for  a  wharf  and  for  commercial  purpo- 
ses. « 

The  bill  also  alledged  the  mortgage  to  be  defectively  execu- 
ted, there  being  but  one  witness  to  the  execution  by  Garrett 
and  N.  J.  Brown,  and  prayed  for  an  injunction  to  restrain  the 
insurance  company  from  paying  over  the  money,  and  to  inhibit 
and  enjoin  Jones  from  proceeding  to  foreclose  his  mortgage 
under  the  advertisement,  &c.,  and  that  Thompson  be  decreed 
to  vest  in  complainant  a  more  perfect  title  to  the  premises,  or 


CASES  IN  CHANCERY.  51 

that  the  sale  from  Thompson  to  complainant  might  be  set  aside,  first  circuit, 
and  that  he  repay  the  purchase  money  to  complainant,  &c.,    oisbrow 
and  for  other  and  further  relief.  jonia. 

A  motion  was  now  made  to  dissolve  the  injunction  for  want 
of  equity  in  the  bill,  and  the  answers  denying  all  the  equity 
alledged. 

Goodwin  and  Romevn  in  support  of  the  motion, 

D.  Goodwin. 

I.  The  first  point  which  seems  to  be  made  in  the  bill,  as  a 
ground  for  the  injunction,  is  the  covenants  in  the  conveyance 
by  Jones,  and  the  possession  under  the  lease. 

1.  If  the  facts  be  admitted  on  which  this  complaint  is 
founded,  the  remedy  is  peculiarly  and  solely  at  law  by  action 
of  covenant,  by  Disbrow  against  his  grantor.  4  Kent's  Com., 
471  to  473. 

2.  This  w^as  provided  for  by  the  agreement  of  parties,  and 
the  lease  to  Whiting  is  no  breach.  All  the  papers  executed 
together,  constituted  one  agreement,  and  by  it  Whiting  was  to 
possess  under  the  lease;  the  vendees  of  Jones  M^ere  to  receive 
the  rents  up  to  February  1, 1837,  and  for  the  two  years  there- 
after Jones  was  to  receive  the  rents  and  pay  the  vendees  in 
lieu  thereof,  81,400  per  annum.  There  is  no  ground  of  com- 
plaint either  at  law  or  in  equity.  Jones  continued  the  landlord 
the  two  years,  paying  as  aforesaid,  and  then  the  vendees  were 
to  have  possession,  or  sooner  if  Whiting  voluntarily  surrendered 
possession  before  that  time. 

3.  Whiting  being  in  actual  possession,  complainant  and  all 
other  parties,  had  notice  of  his  term.  Daniels  vs.  Davison,  16 
Veseij,  249;  Taylor  vs.  Stibhert,  2  Vesey,  437;  Chesterman  vs. 
Gardner,  5  John.  Ch.  R.,  29;  Grimstone  vs.  Carter,  3  Paige, 
421. 

II.  As  to  the  tender  alledged  in  the  bill  of  apart  of  the  mo- 
ney, and  the  insurance  money. 

1.  There  should  have  been  an  unqualified  tender  of  the 
whole  amount  due,  to  make  any  case  for  equity.     A  qualified 


53  CASES  IN  CHANCERY. 

Firstarcuit.  tender  is  insufficient;  so  also,  a  tender  of  a  part  only,  is  not  a 
Disbrow     sufficient  tender. 

Jones.  If  complainant  has  any  claim  to  possession,  or  for  re-build- 
ing, or  for  the  insurance  money,  it  is  at  law.  If  complainant 
is  entitled  to  the  insurance  money  as  reversioner,  he  may  re- 
cover in  an  action  at  law;  and  there  is  no  allegation  in  the  bill 
that  either  Whiting  or  Jones  would  not  be  responsible  for  it,  if 
paid  into  their  hands. 

2.  The  tender  is  denied  in  the  answer  by  Jones. 
III.  The  complainant  has  no  claim  upon  Jones  to  re-build, 
nor  has  he  any  claim  for  the  insurance  money. 

1.  There  is  no  contract  between  Jones  and  his  vendees  upon 
which  such  a  claim  can  be  founded. 

2.  By  agreement  between  Jones  and  his  vendees.  Whiting 
was  to  have  possession  the  two  years;  Jones  to  continue  the 
landlord  and  receive  the  rents.  At  the  expiration  of  the  two 
years,  the  vendees  were  to  have  possession  of  the  premises  as 
they  then  are.  During  that  time,  the  mouths  of  the  vendees  of 
Jones  are  closed,  and  they  have  nothing  whatever  to  say,  touching 
the  possession.  The  vendees  and  the  complainant  under  them, 
until  that  time,  are  estopped. 

3.  The  contract  of  insurance  is  personal  between  the  par- 
ties, and  the  parties  only  to  the  contract  can  claim  the  benefit 
of  it,  except  by  agreement  whei-eby  a  trust  is  created,  as 
was  the  case  between  Jones  and  Whiting.  Saddlers'  com.,  vs. 
BahcocTi,  2  Jllkyns,  557,  558;  Mildmay  vs.  Folgham,  3  Vesey, 
472;  Holtzopffel  vs.  Baker,  18  Vesey,  114;  Columbian  ins.  co. 
vs.  Lawrence,  10  Peters,  507;  'Lament  vs.  Chatham  ins.  co.,  1 
HalPs  R.,  45. 

4.  Even  if  complainant  and  those  in  interest  with  him,  could 
claim  the  insurance  money  under  the  covenant  in  the  lease, 
they  must  assume  the  place  of  Jones  and  perform  the  contract 
to  Whiting  to  re-build  in  six  months,  and  indemnify  Jones 
against  it.  The  damages  of  non-performance.  Whiting  states 
in  his  answer,  will  be  not  less  than  $2,000  per  year,  above  the 
rents. 

5.  Whiting  has   the  equitable  right  to  hold  the  insurance 


CASES  IN  CHANCERY,  63. 

money  as  security  for  the  performance  of  Jones'  covenant  to  F'^'Circuii. 
J*e-biiild.  """S^ 

6.  The  complainant's  bill  is  founded  on  a  mistaken  view  of  Jones, 
the  premises.  It  should  have  been  (if  any  thing,)  a  bill  to  re- 
deem and  for  an  account  for  that  purpose.  The  mortgagee 
has  a  right  under  his  mortgage  to  possession,  and  to  the  rents 
and  profits,  unless  there  be  an  agreement  to  the  contrary;  and 
if  he  obtains  possession,  he  accounts  for  the  rents  and  profits. 
The  grantee  subject  to  the  mortgage,  takes  subject  to  the 
equitable  rights,  and  of  them  he  must  take  notice;  if  he  is  de- 
ceived by  his  grant  or,  his  remedy  is  against  him  alone,  and  this 
cannot  prejudice  the  mortgagee.  2  Cruis.  Big.,  97  ^o  jOl;  4 
Kent  Com.  154,  155,  1G4. 

T.    ROMEYX. 

I.  The  first  point  made  by  the  bill  seems  to  be  the  breach  of 
covenants  in  the  conveyance  by  Jones,  through  Whiting's  con- 
tinued possession.  What  were  Jones'  covenants?  They  are, 
seisin,  freedom  from  incumbrances  and  quiet  enjoyment.  These 
covenants  are  personal  and  do  not  pass  to  the  assignee.  (<S'ee 
4  Kent  Com.  459.)  The  last  is  the  only  one  of  which  this 
complainant  (who  is  not  an  original  'purchaser)  can  avail  him- 
self of.  First,  If  this  be  broken,  the  remedy  is  by  action  of 
covenant  at  laic.  Second,  There  is  no  breach  of  it  for  the 
original  agreement  provided  for  the  possession  of  the  lots  by 
Jones  and  his  tenants  until  February  1,  1839. 

II.  The  second  point  appears  to  be  in  reference  to  the  mort- 
gage and  the  proceedings  to  sell  under  it.  The  complainant 
seeks  to  enjoin  the  sale  on  these  grounds:  i^/rsf,  He  avers  that 
he  tendered  the  amount  which  he  was  liable  to  pay  on  the  mort- 
gage. 

To  this  we  reply: 

1.  The  answer  of  Jones  denies  the  tender.  2.  Admitting 
the  averment  of  the  bill  to  be  true,  the  tender  was  iusufiicient: 

First,  Because  it  was  not  of  the  whole  amount  due. 

Second,  Because  it  was  only  conditional,  and  required  from 
Jones  before  he  could  avail  himself  of  it,  the  relinquishment 


54  CASES  IN  CHANCERY. 

First  circuit,  ^f  the  posscssiou,  which  by  the  very  terms  of  sale  he  was  en- 
Disbrow     titled  to  retain. 

Jones.  Third,  Complainant  also  sets  up  the  imperfection  of  the  ori- 

ginal mortgage.     As  to  two  of  the  parties  there  is  but  one  sub- 
scribing witness. 

We  answer: 

First,  The  officer  who  took  the  acknowledgment  is  to  be 
considered  a  subscribing  witness. 

Second,  The  defect,  if  any,  is  a  mere  formal  one,  and  will 
be  disregarded  by  a  court  of  equity. 

Thii-d,  The  complainant  is  estopped  by  his  own  acts. 

Fourth,  The  complainant  objects  to  the  sale  of  the  ivhole  lot 
for  a  single  instalment. 

The  answer  is — the  lot  is  incapable  of  division  without  loss. 

Under  such  circumstances,  the  court  will  not  interfere,  ex- 
cept to  compel  a  sale  according  to  the  provisions  of  the  statute 
regulating  sales  on  foreclosures  in  equity.  Laws  of  Michigan 
of   1833,  j^age  301. 

This  confines  the  whole  matter  to  the  following  grounds: 

I.  The  obligation  of  Jones  to  re-build,  and  the  right  of  the 
complainant  to  call  upon  him  at  this  time  and  in  this  way. 

We  admit,  (for  the  sake  of  this  argument,)  that  Jones  is 
bound  to  re-build.  What  then  ?  He  is  the  landlord  for  two 
years  yet.  Whiting  alone  can  complain  of  his  failure  to  build; 
and,  until  the  two  years  have  expired,  Disbrow  can  have  no 
action  or  claim  against  him,  under  these  circumstances.  And 
in  the  absence  of  any  averments  impeaching  the  solvency  and 
responsibility  of  Jones,  what  possible  ground  is  there  for  the 
interposition  of  a  court  of  equity  at  this  time. 

II.  The  right  of  the  complainant  to  the  insurance  money. 
What  right  has  he'?  We  insist,  first,  that  insurance  is  a 
personal  contract  for  the  benefit  of  the  party  assured;  second, 
that  it  does  not  attach  to  the  reality  or  in  any  manner  go 
with  the  same  as  incident  thereto;  third,  that  no  equity  at- 
taches upon  the  proceeds  of  policies  in  favor  of  third  persons, 
unless  there  be  some  contract  or  agreement  or  trust  to  that 
effect.     3  Bos.  P.  C,  497;  12  JVb.  of  Law  Library,  72;  2  .^th, 


CASES  IN  CHANCERY.  55 

557;  3  Ves.,  472;   18   Ves.,  114;  12  J^o.  of  Law  Journal,  81,  firsicircuu. 
82;  10  Pe^,  513;   1  HaU's  Rep.,  45.  Disbrow 

It  is  immaterial,  for  the  purpose  of  this  argument,  whether  jomj. 
Jones  or  Whiting  has  the  right  to  the  proceeds  of  the  policy; 
either  of  them  had  an  insurable  interest  at  the  time  of  efiecting 
the  insurance.  (9  Wend.  Rep.,  404.)  Eitlier  of  them  liad  an 
interst  at  the  time  of  the  fire,  sufficient  to  entitle  him  to  pay- 
ment of  the  damages  sustained  by  it. 


WooDBRiDGE  and  Backus  opposed  the  motion, 


* 


The  Chancellor. — In  the  argument  of  this  motion,  it  has 
been  urged  on  the  part  of  the  complainant,  that  Jones,  having 
put  it  in  the  power  of  his  vendees  to  commit  a  fraud  upon  the 
complainants,  he  is  responsible  for  the  consequences. 

I  am  unable  to  sec  any  thing  in  this  case  to  authorize  this 
position  in  the  argument.  There  is  no  showing  that  goes  to 
charge  Jones  with  fraud. 

At  the  time  of  the  execution  and  delivery  of  the  conveyance 
by  Jones,  to  Thompson  and  others.  Whiting  was  in  possession 
and  occupied  the  premises  under  the  lease  from  Jones,  and  the 
vendees  all  knew  that  fact.  Whiting  was  applied  to,  at  the 
same  time,  to  learn  whether  he  wished  or  intended  to  occupy 
the  premises  the  full  term  to  which  the  lease  had  been  extended, 
(to  February  1,  1839,)  and  he  replied  that  he  did,  and  this  fact 
was  also  communicated  to  the  vendees  of  Jones. 

There  is,  therefore,  not  only  the  absence  of  fraud  on  the 
part  of  Jones,  in  this  respect,  but  Whiting's  right  to  occupy 
formed  the  subject  of  a  positive  agreement  between  Jones  and 
his  vendees. 

The  deed  by  Jones,  the  bond  and  mortgage  on  the  premises 
by  his  vendees,  and  an  instrument  or  agreement  reciting  and 
recognizing  Whiting's  unexpired  term,  and  his  right  to  occupy 
under  the  lease,  signed  by  all  the  vendees,  were  all  executed 
and  delivered  at  the  same  time;  each  of  these  instruments, 
therefore,  must  be  regarded  as  a  part  of,  and  as  constituting 
one  and  the  same  transaction.     The  vendees  of  .Tones  have 


*  Woodbridgc  and  Backus  have  furnished  the  reporter  with  no  brief*  on  this  motion. 


56  .  CASES  IN  CHANCERY. 

First  Circuit,  jjothing  to  complain  of,  for  Whiting  was  in  possession  when 

"^"^^^iC^  they  purchased,  and  their  right  to  possession  was  subject,  by 

Jones,      agreement,  to  his  unexpired  term.     Disbrow,  th?  complainant, 

was  not  an  original  purchaser  from  Jones,  but  derived  his  title 

throurrh  the  vendees  of  Jones,  and  clearly  they  could  convey 

no  greater  interest  than  that  which  they  themselves  had  in  the 

premises. 

Whiting  was  also  in  possession,  and  occupied  the  premises  at 
the  time  of  Disbrow's  purchase  from  Thompson,  and  Disbrow 
knew  that  fact,  as  he  admits  in  his  bill,  and  there  is  no  princi- 
ple better  settled  than  that  the  possession  of  a  tenant  is  notice 
to  a  purchaser  of  the  actual  interest  the  tenant  may  have  in 
the  premises.  Chesterman  vs.  Gardner,  5  John,  Cfi.,  29;  Dan- 
iels vs.  Davison,  16,  Ves.,  249;  Taijlor  vs.  Stibbert,  2  Ves., 
437. 

In  the  case  in  4  Hen  ^'  Munf,  120,  which  has  been  cited  by 
the  complainant,  it  does  not  appear  that  the  purchaser  had  no- 
tice that  Bibb  was  in  possession  before  he  received  the  first 
deed,  of  February  11,  1790,  and  this  fact,  on  a  careful  exami- 
nation of  the  case,  will  be  found  to  form  the  basis  of  that  de- 
cision, la  the  case  of  Grimstone  vs.  Carter,  3  Paige,  439,  I 
have  been  able  to  find  nothing  conflicting  with  the  rule  above 
stated,  but  on  the  contrary,  chancellor  Walworth  says,  in  that 
case,  that  it  is  the  settled  law  of  the  land  that  the  possession  of 
premises  by  a  third  person  is  sufficient  to  put  purchasers  on  in- 
quiry, and  to  deprive  them  of  the  defence  of  bona  fide  pur- 
chasers, without  notice  of  his  rights. 

From  the  answers  of  Jones  and  Whiting  in  this  case,  it  is 
clearly  to  be  inferred  that  Disbrow  had,  at  the  time  of  his  pur- 
chase, not  only  notice  of  the  existence  and  substance,  but  also 
of  the  details  of  Whiting's  lease. 

It  is,  therefore,  clear  to  my  mind,  that  when  Disbrow  pur- 
chased the  premises  of  Thompson,  he  took  them  not  only  sub- 
ject to  the  mortgage,  but  also  to  Whiting's  term  under  the 

lease. 

It  is  also  insisted  by  the  complainant,  that  the  mortgage  is 
defective,  there  being  but  one  witness  to  the  execution  of  it 


CASES  IN  CHANCERY.  57 

by  Garrett  and  N.  J.  Brown.     To  this  allegation  the  defend-  ^^^^^l^il^' 
ants  answer,  that  the  officer  who  took  the  acknowledgment    Disbrow 

re. 

must  be  considered  a  subscribing  witness.     It  is  not  necessary     Jo"cs. 
now  to  decide  how  far  the  execution  of  the  mortgage  may  be 
considered  in  compliance  with  the  statute,  for  if  the  mortgage 
were  defectively  executed  in  this  respect,  it  could  form  no 
ground  in  the  present  case  for  the  interference  of  this  court. 

The  complainant  has  recognized  tiiis  mortgage  in  his  pur- 
chase, and  there  is  no  pretence  that  the  money  is  not  due. 

The  tender  alledged  in  the  bill  is  not  supported  by  any  other 
evidence,  and  is  positively  denied  in  the  answer. 

That  the  whole  of  the  premises  arc  advertised  to  be  sold 
for  the  first  instalment  due  on  the  mortgage,  furnishes  no  ground 
for  the  inteference  of  this  court,  as  it  is  shown  by  the  answer, 
that  the  premises  are  valuable  principally  for  a  wharf  and 
storehouse,  and  the  whole  premises  have  heretofore  been  used 
and  occupied  for  that  purpose,  and  cannot  be  sold  separately 
without  injury  to  the  whole. 

After  a  careful  examination  of  the  whole  matter,  I  have  been 
irresistibly  led  to  the  conclusion  that  the  case  does  not  justify 
an  interference  with  the  policy  of  insurance. 

The  insurance  is  a  personal  contract,  and  does  not  pass  with 
the  title  of  the  property  insured.  This  doctrine  is  clearly 
laid  down  in  Ellis  on  Insurance,  page  72.  The  language 
of  lord  chancellor  King  is  there  quoted,  and  he  says,  in  refe- 
rence to  policies  of  insurance:  "  these  policies  are  not  insuran- 
ces of  the  specific  things  mentioned  to  be  insured,  nor  do  such 
insurances  attach  on  the  reality,  or  in  any  manner  go  wuth  the 
same  as  incident  thereto,  by  any  conveyance  or  assignment, 
but  they  are  only  special  agreements  with  the  persons  insuring 
against  such  loss  or  damage  as  they  may  sustain."  This  doc- 
trine is  fully  recognized,  and  stated  to  be  the  true  one  in  the 
Saddlers'  company,  vs.  Badcock,  2  Atk.,  554,  and  in  1  Philips 
on  Insurance,  27. 

All  the  decisions  I  have  been  able  to  find  conflicting  with 
this  principle,  arise  under  the  builders'  act  statute  of  14  Geo. 
III.,  which  empowers  the  governors  or  directors  of  the  insurance 
Vol.  I.  8 


58  CASES  IN  CHANCERY. 

Firatcireuit.  offices  within  Certain  districts,  upon  the  request  of  any  persons 
Disbrow  interested  in,  or  entitled  to  any  houses  or  buildings  which  may 
Jones,  be  burned  dov,^n,  &c.,  or  upon  any  grounds  of  suspicion  that 
the  person  insured  has  been  guilty  of  fraud  or  wilfully  setting 
the  houses  or  buildings  on  fire,  to  cause  the  insurance  money 
to  be  laid  out,  as  far  as  the  same  will  go,  towards  re-building 
or  repairing  the  property  damaged,  &c.  Although,  therefore, 
a  policy  as  a  personal  contract  does  not  pass  with  the  property 
insured,  yet  a  covenant  to  insure  to  a  certain  amount,  entered 
into  by  a  lessee  or  other  person  having  an  estate  in  land,  is  so 
far  beneficial  to  the  property,  that  in  cases  to  which  this  sta- 
tute applies,  it  will  run  with  the  land,  and  an  assignee  entitled 
to  the  benefits  of  covenants  real,  may  maintain  an  action  on 
the  covenant  to  insure,  if  it  be  not  observed.  Hughes  on  In- 
surance, 892. 

The  case  of  Vernon  vs.  Smith,  5  Barn.  ^  Md.  1,  was  a  case 
arising  under  the  statute  of  14  Geo.  III.,  and  the  views  expres- 
sed by  Best,  J.,  in  that  case,  have  not  the  authority  of  a  decision, 
and  the  reasons  upon  which  those  views  were  based,  do  not 
exist  here. 

If  Jones  had  no  remaining  interest  or  liabilities,  the  case 
would  present  a  different  aspect.  But  if  the  views  heretofore 
taken  are  correct,  that  the  execution  and  delivery  of  the  deed, 
bond  and  mortgage  and  agreement,  were  all  at  the  same  time, 
and  formed  parts  of  one  and  the  same  transaction,  and  that  Dis- 
brow had  legal  notice  of  the  existence  of  the  lease,  it  follows 
that  both  Whiting  and  Jones  had  an  insurable  interest.  Jones  is 
bound  to  pay  $1,400  per  year  for  the  two  years,  and  is  bound 
by  his  contract  with  Whiting,  to  re-build  in  six  months,  and 
Whiting  is  to  pay  rent  for  the  two  years. 

Wiiether  the  doctrine  of  Best  in  5  Barn,  and  Aid.,  be  cor- 
rect or  not,  it  would  be  going  further  than  any  case  I  have 
been  able  to  find,  to  interfere  by  injunction  in  cases  like  the 
present.  The  legal  rights  of  the  parties  should  be  carefully 
guarded,  and  seldom  interferred  with  by  injunction. 

As  to  whether  Jones  may  not  be  compelled  to  apply  the  in- 
surance money,  at  or  before  the  expiration  of  Whiting's  term, 


CASES  IN  CHANCERY.  50 

need  not  now  be  decided.     The  dissolution  of  this  injunction  ^^^^^li^Jl^- 
does  not  prevent  Disbrow's  recovery  of  Jones,  if  he  is  Uable    D.shrow 
to  him  for  any  portion  of  the  insurance  money;  and  there  is     Joncs. 
no  allegation  in  the  bill   that  Jones  is  insolvent  or  unable  to 
pay  any  amount  which  may  be  recovered  against  him. 

Upon  the  whole  then,  Joncs  seems  to  have  acted  fairly,  so 
far  at  least  as  regards  the  sale  to  his  vendees.  All  of  the 
facts  in  relation  to  the  premises,  were  at  that  time  disclosed 
by  J^nes,  and  Whiting's  right  to  occupy  under  the  lease,  was 
made  the  subject  matter  of  a  positive  agreement  between  Jones 
and  his  vendees. 

Whiting  continued  to  occupy  and  was  in  possession  when 
Disbrow  purchased  from  Thompson,  and  Disbrow  knew  that 
fact,  and  this  the  law  regards  as  notice  to  him  of  Whiting's 
rights  in  the  premises. 

If  a  fraud  has  been  practiced  upon  the  complainant  at  all,  it 
is  by  his  immediate  vendees,  and  as  against  them  he  has  an  ade- 
quate remedy. 

Jones  is,  therefore,  clearly  entitled  to  his  remedy  to  collect 
his  money  which  is  due;  he  has  not  been  in  fault,  and  it  would 
be  unjust  to  restrain  him  from  doing  so.  Jones  and  Whiting 
had  an  insurable  interest  to  more  than  the  amount  insured,  and 
they  have  earned  the  benefits  to  be  derived  from  the  policy, 
for  they  have  paid  the  premium  on  the  insurance. 

Some  other  points  have  been  made  in  the  argument,  and  they 
have  all  been  carefully  considered,  and  I  have  been  iz'resistibly 
lead  to  the  conclusion,  above  stated. 

This  case  may  be  like  the  case  in  the  3  of  Paige's  Reports, 
ti  hard  one;  but  this  court  is  bound  by  the  rules  of  law,  and 
whenever  courts  shall  undertake  to  judge  according  to  the  con- 
venience of  parties  in  each  case,  there  is  an  end  to  all  fixed 
and  settled  rules,  and  the  rights  of  parties  will  be  left  to  the 
caprice  of  whomsoever  may  occupy  the  seats  of  justice  at  the 
time.     The  injunction  in  this  case  must  be  dissolved. 

Injunction  dissolved. 


60  CASES  IN  CHANCERY. 

First  Circuit. 

Goff 

vs. 

Thompson,  ^^^j^qj^  Goff  and  others,  vs.  John  Thompson  and  oth- 
ers. 

Wliere  a  father  executed  a  deei  to  Iiis  daugli'.er,  and  tlie  daughter  and  her  husband  agreed  to 
support  and  maintain  the  grantor  during  his  natural  life,  and  several  months  afterwards,  the 
grantor  having  died,  and  the  daughter  and  her  husband  having  performed  their  agreement 
upon  a  bill  filed  to  set  aside  the  deed,  to  give  elfcct  to  a  will  previously  made  by  the  grantor, 
it  was  held  that  the  consideration  upon  which  the  deed  was  given,  was  a  good  and  valid  con- 
sideration, and  that  the  deed  would  not  be  set  aside,  though  the  daughter  had  executed  a  deed 
rc-conveying  the  land  to  her  father,  as  security  for  his  support,  the  deed  from  tlie  daughter 
to  the  ftuher,  having  been  cancelled  or  lost  by  the  father. 

A  deed  executed  by  a.  feme  covert,  without  her  husband  joining  with  her,  is  void. 

The  bill  in  this  case,  was  filed,  January  12,  1836,  by  Aaron 
GofF  and  Elscy,  his  wife,  Elial  Todd  and  Polly,  his  wife,  and 
Mica  Mudge,  and  Martha,  his  wife,  against  John  Thompson, 
and  Diana,  his  wife,  and  Carson  McCurdy,  and  stated  that  Ri- 
chard McCurdy,  (who  was  father  of  said  Elsey,  Polly,  Mar- 
tha, Diana  and  Carson,)  was,  in  his  life  time,  seized  and  pos- 
sessed in  fee,  of  the  south-west  quarter  of  section  twenty,  in 
township  two  south,  of  range  ten  east,  in  the  county  of  Wayne, 
and  May  30,  1833,  made  his  will,  whereby  he  bequeathed  to 
his  son  Carson,  the  west  half  of  said  quarter  section,  and  to 
the  said  Elsey,  Polly,  Martha  and  Diana,  the  remaining  half 
of  said  quarter  section;  that  some  time  after  making  the  said 
will,  an  arrangement  was  made  between  said  Richard  and  his 
son  Carson,  that  said  Richard  should  convey  to  him  immedi- 
ately the  provision  intended  for  him  by  the  will;  that  Septem- 
ber 9,  1834,  Richard  accordingly  deeded  the  portion  given  by 
the  will  to  Carson;  the  consideration  stated  in  the  deed  was 
$2,000.  The  deed  was  recorded  September  10,  1834.  The 
bill  stated  that  no  part  of  the  consideration  money  mentioned 
in  the  deed,  was  ever  in  fact  paid,  but  that  the  deed  was  a 
mere  voluntary  conveyance,  intended  to  operate  as  in  full  of 
the  bequest,  and  in  full  of  his  share  of  the  real  estate  of  said 
Richard;  that  said  Richard  omitted  to  make  any  alteration  in 
his  will,  or  take  any  release  in  behalf  of  his  other  children, 


ison. 


CASES  IN  CHANCERY.  61 

from  said  Carson  to  his  share  of  the  property  under  the  will;  f'^'Cireui'- 
that  said  Richard,  during  his  life  time,  resided  with  his  daugh-  co/r 
tor,  Diana,  and  John  Thompson,  her  husband,  and  some  time  Thomji 
after  the  execution  of  said  deed,  said  Richard  had  some  difl]- 
culty  with  his  son  Carson,  in  the  course  of  which  he  struck  or 
beat  said  Carson;  that  a  short  time  afterwards  said  Carson 
threatened  to  commence,  and  did  actually  commence  legal  pro- 
ceedings against  said  Richard;  that  he  became  alarmed,  and 
his  fears  were  excited,  and  his  apprehensions  increased  by  the 
representations  of  said  Diana  and  John  Thompson,  with  whom 
he  was  then  residing;  that  said  Richard  was  much  infirm,  and 
advanced  in  years;  that  said  Diana  and  John,  persuaded  said 
Richard  that  his  quarrel  with  his  son  Carson,  would  be  his  ruin; 
that  Carson  would  strip  him  of  all  his  property,  and  the  only 
way  for  him  to  protect  himself  and  save  Iiis  property,  would  be 
for  him  to  vest  it  in  the  name  of  some  other  person,  and  that  by 
these  and  other  persuasions  continually  kept  up,  they  so  worked 
upon  the  fears  of  the  old  man  as  to  induce  him  to  make  a  con- 
veyance of  all  the  remainder  of  his  land  to  his  daughter  Dia- 
na Thompson,  on  or  about  the  27th  day  of  September,  1834, 
for  the  pretended  consideration  of  six  hundred  dollars;  the  bill 
charged  that  there  was  no  consideration  actually  paid,  and 
that  the  deed  was  procured  by  artifice  and  fraud;  and  that  at 
the  time  of  the  execution  of  the  deed,  it  was  the  express  un- 
derstanding between  said  Diana  and  her  husband,  and  said 
Richard;  that  so  soon  as  said  Richard's  difficulties  with  said 
Carson  should  be  arrranged,  the  deed  should  be  cancelled,  and 
the  land  re-conveyed;  that  the  deed  from  said  Richard  to  said 
Diana,  was  not  delivered,  and  that  said  Richard  did  not  intend 
to  deliver  the  same  or  have  it  recorded,  unless  he  was  driven 
to  extremities  by  his  son  Carson's  course  of  proceeding;  that 
he  put  the  deed  in  his  trunk  for  safe  keeping;  that  it  was  sub- 
sequently abstracted  from  his  trunk,  and  put  on  record  in  the 
office  of  the  register  of  deeds  in  the  county  of  Wayne,  Octo- 
ber 1,  1834. 

The  bill  further  stated,  that  the  said  Richard  was  not  only 
old,  and  removed  from   access  on  the  part  of  his  other  chil- 


63  CASES  IN  CHANCERY. 

First  Circuit,  drcn,  but  also  ignorant,  and  unable  to  write  or  sign  his  name; 

(jr.ft-      and  that  when  the  deed  was  brought  to  a  justice  to  be  acknowl- 

Thompson.  edged,  it  bore  his  mark,  previously  placed  there  by  the  said 

Dianna  and  John,  or  one  of  them,  and  a  memorandum  was  made 

on  the  deed  to  that  effect. 

The  bill  charged  that  the  deed  was  never  read  over  to  said 
Richard,  or  its  contents  explained,  before  he  signed  the  same; 
and  that  his  mark  was  placed  on' the  deed  before  the  wit- 
nesses were  called,  and  not  in  their  presence,  and  that  said 
Richard  never  acknowledged  the  same  in  the  presence  of  the 
subscribing  witness;  that  in  the  month  of  December  following, 
when  a  final  settlement  and  adjustment  of  all  difficulties  be- 
tween said  Richard  and  Carson  was  about  to  take  place,  said 
Richard  learned,  for  the  Jirst  time,  that  the  deed  had  been  re- 
corded, and  that  said  Richard,  in  fact,  did  not  know  whether 
the  paper  executed  was  a  deed  or  bill  of  sale;  that  said  Rich- 
ard became  very  uneasy  on  the  subject,  and  threatened  to 
leave  the  house  of  said  Diana  and  John  Thompson,  and  have 
recourse  to  legal  proceedings  to  set  aside  the  said  deed,  aliedg- 
ing  the  same  to  have  been  fraudulently  obtained;  that  said 
Diana  finally  consented  to  re-convey  the  said  lands  to  said 
Richard;  that  about  the  middle  of  December,  1834,  she  did 
actually  execute  and  acknowledge,  in  due  form  of  law,  a  deed 
of  conveyance,  re-conveying  said  land  to  said  Richard;  that 
her  said  husband  did  not  join  with  her  in  said  deed;  and 
said  Richard  being  an  old  and  ignorant  man,  did  not  know  it 
was  necessary  for  her  said  husband  to  join  with  her  in  said 
conveyance,  as  he,  the  said  Richard,  had  conveyed  to  said 
Diana  alone,  and  accepted  her  conveyance;  that  early  in  the 
month  of  September  following,  said  Richard  died  at  the  house 
of  said  Diana  and  John  Thompson. 

The  bill  also  charged  that  the  last  mentioned  deed  had  been 
abstracted  from  the  trunk  of  said  Richard,  and  at  his  death 
was  not  to  be  found.  It  also  stated  that  the  will  of  said  Rich- 
ard was  duly  proved,  and  probate  thereof  granted  to  Elial 
Todd,  November  16,  1835. 

The  bill  also  stated,  that  when  said  Richard  went  to  live 


CASES  IN  CHANCERY.  6» 

with  defendants,  Diana  and  John,  he  had  about  four  liundred  Firsicircuit. 
dollars  in  money  and  property,  which  they  had  used,  or  still       ^g- 
retained  at  the  death  of  said  Richard.  T.;oi"')son. 

The  bill  prayed  that  the  deed  executed  September  27,  1834, 
might  be  decreed  to  be  void,  and  be  delivered  up  to  be  cancel- 
led, and  that  an  account  might  be  taken,  &c.,  and  for  an  in- 
junction. 

An  injunction  was  granted,  January  14,  1836. 

The  answer  of  John  Thompson  and  Diana,  his  wife,  admit- 
ted that  said  Richard  was  seized  of  the  lands  in  fee  simple,  and 
that  a  paper  was  executed  by  said  Richard,  purporting  to  be  a 
last  will  and  testament;  denied  an}^  knowledge  of  its  provi- 
sions; admitted  also  the  making  of  the  deed  to  Carson  Mc- 
Curdy  as  stated  in  the  bill;  admitted  that  said  Richard  lived 
with  said  defendants,  John  and  Diana,  during  part  of  the  year 
of  1834,  and  from  that  time  up  to  the  time  of  his  death;  that 
there  were  difficulties  between  said  Richard  and  Carson,  as 
stated  in  the  bill;  denied  that  said  Richard  became  greatly 
alarmed  at  the  proceedings  against  him  by  said  Carson;  also, 
denied  that  they  excited  or  attempted  to  excite  his  fears,  as  sta- 
ted in  the  bill,  or  that  they  advised  him  to  convey  any  of  his 
estate  to  any  person. 

The  answer  stated  that  some  time  before  the  prosecution  was 
commenced  by  said  Carson,  said  Richard  came  to  the  house  of 
said  John  and  Diana,  and  told  them  that  he  was  so  illy  treated 
by  his  other  children,  and  particularly,  said  Carson,  that  he 
could  not  and  would  not  stay  any  longer  with  them,  and  that 
if  his  daughter  Diana  would  not  take  his  property  and  support 
him,  he  would  give  it  to  some  one  who  would  take  it  and  sup- 
port him;  that  said  Richard  repeatedly  solicited  said  John  and 
Diana  to  take  his  property  and  support  him  during  his  life;  that 
at  the  urgent  solicitations  of  said  Richard,  said  defendants  left 
a  good  situation  and  profitable  business  in  the  city  of  Detroit, 
and  moved  on  to  the  land  of  said  Richard,  which  was  then 
nearly  wild  and  uncultivated,  and  of  but  little  value. 

That  at  the  urgent  request  of  said  Richard,  they  took  him 
into  their  family  to  live  permanently  with  them  for  the  remain- 


G4  CASES  IN  CHANCERY. 

First  circuit,  der  of  his  life;  and  without  any  solicitation  or  suggestion  on 
"""^"■"^^  the  part  of  the  defendants,  he  voluntarily  proposed  to  convey 
Thompson.  ^0  hls  Said  daughter,  Diana,  the  tract  of  land  described  in  the 
bill,  on  the  condition  and  for  the  actual  consideration  that  the 
defendants,  John  and  Diana,  would  pay  certain  small  debts 
which  he  then  owed,  and  they  should  take  him  into  their  fa- 
mily and  provide  for  him  the  necessaries  and  comforts  of  life 
during  his  life  time;  that  about  September  27,  1834,  at  the  re- 
quest and  solicitation  of  said  Richard,  said  John  prepared  a 
deed  of  the  said  land  to  said  Diana,  and  the  same  was  subse- 
quently executed,  signed,  sealed,  acknowledged  and  delivered 
in  presence  of  the  subscribing  witnesses;  that  said  deed,  be- 
fore it  was  executed,  was  read  over  and  explained  to  said 
Richard;  that  there  was  never  any  otiier  understanding  or 
agreement,  express  or  implied,  than  that  the  defendants  were 
to  have  the  land  in  consideration  that  they  should  provide  for, 
maintain  and  support  said  Richard  during  his  natural  life,  which 
promises  and  agreements,  the  answer  alledged,  the  defendants 
had  faithfully  performed,  fulfilled  and  kept. 

That  the  deed  was  recorded  with  the  full  knowledge  and 
consent  of  said  Richard,  and  was  never  put  away  by  said 
Richard,  in  his  trunk,  as  alledged  in  the  bill;  but  that  the  same 
remained  in  the  hands  and  under  the  control  of  the  defendants 
from  the  time  of  its  delivery  up  to  the  time  of  the  filing  the  bill, 
and  that  the  agreement  to  support  said  Richard  during  his  life, 
and  the  conveyance,  were  bona  fide  transactions. 

The  answer  denied  that  said  Richard  was  removed  from  ac- 
cess to  his  children,  or  any  other  persons;  admitted  that  he 
was  old  and  infirm  of  body,  but  stated  that  he  had  a  sound 
mind,  fully  capable  of  appreciating  the  conduct  towards  him  of 
his  children  and  others.  Admitted  he  was  an  illiterate  man, 
unable  to  write,  and  stated  that  his  mark  was  affixed  to  said 
deed  by  the  justice  who  took  the  acknowledgment,  or  by  some 
other  disinterested  person  in  the  presence,  and  by  the  direction 
or  request  of  said  Richard. 

Denied  that  said  Richard  ever  expressed  uneasiness  on  ac- 
count of  said  deed  having  been  made  to  said  Diana,  and  threat- 


CASES  IN  CHANCERY.  65 

ened  to  leave  the  house  and  have  recourse  to  legal  proceed-  First  circuit. 
ing  to  set  aside  said  deed.  ^^^j. 

Stated  that  Elial  Todd,  one  of  the  complainants,  about  Sep-  Tiio"i)9on. 
tember  3,  1834,  set  up  a  false  and  unfounded  claim,  and  com- 
menced a  suit  at  law  against  John  Thompson,  one  of  the  de- 
fendants, and  boasted  that  he  would  soon  obtain  a  judgment 
for  a  large  amount,  and  that  he  would  sell  the  land  which  said 
Richard  had  conveyed  to  Diana,  on  the  execution,  and  from 
other  false  and  fraudulent  representations,  said  Todd  induced 
said  Richard  to  fear  that  the  provision  he  had  made  for  his  sup- 
port in  his  old  age,  would  all  be  taken  away  by  said  Todd,  and 
he  so  expressed  his  fears  to  the  defendants,  and  intimated  a 
wish  that  said  Diana  would  make  out  a  deed  to  him  of  said 
land,  merely  and  for  the  sole  purpose  of  preventing  its  being 
taken  and  sold  upon  execution,  if  Todd  should  recover  a  judg- 
ment, and  to  keep  sure  his  own  support;  and  that  said  Richard 
stated,  at  the  same  time,  it  should  make  no  difference;  that  said 
Diana  should  have  the  land;  that  he  only  wanted  the  deed  to 
keep  his  son-in-law,  Todd,  from  turning  him  out  of  doors,  and 
to  keep  his  other  children  easy. 

That,  with  the  aforesaid  understanding,  said  Diana  did  exe- 
cute, acknowledge  and  deliver  to  said  Richard,  a  deed  of  said 
land;  but  said  John  refused  to  execute  the  said  deed,  and  was 
not  present  when  the  same  was  executed  by  said  Diana. 

That  it  was  the  express  understanding  at  the  time  of  exe- 
cuting said  deed,  that  it  should  never  operate  against  said  de- 
fendants; that  it  was  then  delivered  to  said  Richard,  and  de- 
fendants had  never  seen  it  since  that  time,  and  did  not  know 
where  it  was  or  what  had  become  of  it;  that  defendants  had 
good  reason  to  believe  said  Richard,  in  his  life  time,  destroyed 
it,  on  ascertaining  Todd  had  no  well  founded  claim  against  said 
John  Thompson;  that  said  Richard  was  taken  sick  about  the 
last  of  August,  and  continued  until  about  the  first  of  Novem- 
ber, when  he  died  at  the  house  of  defendants. 

Denies  that  said  Richard  brought  personal  properly  and  mo- 
ney to  the  house  of  defendants,  which  they  had  used  up,  to  the 
amount  of  $400,  but  admits  that  he  brought  cows,  pigs,  &c., 
Vol.  I.  0 


Goff 

vs. 

Thompson. 


6g  CASES  IN  CHANCERY. 

Firstcircuit.  to  the  amount  of  about  #100,  which  he  gave  to  his  daughter, 
Diana. 

That  since  defendants  had  been  on  said  land,  they  had  made 
considerable  improvement;  that  defendants  had  been  put  to 
considerable  trouble  and  expense  in  attending  said  Richard  in 
his  last  sickness;  paying  doctor's  bills  and  defraying  the  ex- 
penses of  his  funeral,  and  for  clothing  when  he  was  in  health, 
and  that  defendants  had  paid  several  of  his  small  debts,  but  to 
what  exact  amount  they  did  not  know.  Denies  all  combina- 
tion, &c.,  and  intent  to  deceive  or  defraud. 

The  case  was  submitted  on  bill  and  answer. 

A.  D.  Frazer,  solicitor  for  complainants. 

B.  F.  H.  WiTHERELL,  solicitor  for  defendants. 

The  Chancellor. — The  consideration  for  the  deed  from 
Richard  McCurdy  to  Diana  Thompson  was  a  good  and  suffi- 
cient consideration;  and  the  condition  having  been  performed, 
there  can  be  no  doubt  that  the  title  of  the  defendants,  John 
Thompson  and  wife,  to  the  land  in  question,  is  good. 

The  conduct  of  the  defendants,  John  and  Diana  Thompson, 
seems  to  have  been  not  only  just,  but  meritorious. 

The  deed  from  Diana  Thompson  to  Richard  McCurdy,  is 
stated  in  the  answer  to  have  been  executed  as  security  merely, 
and  having  been  destroyed  or  cancelled  by  the  grantee,  in  pur- 
suance of  the  agreement  of  the  parties,  cannot  form  the  foun- 
dation of  any  claim  of  the  present  complainants.  That  deed 
was  also  void  in  itself,  it  having  been  executed  by  a  feme  covert 
without  her  husband's  joining  with  her.  (See  Sexton  vs.  Pick- 
ering, 3  Rand.  R.,  468.) 

No  relief  is  prayed  against  Carson  McCurdy,  the  other  de- 
fendant. 

The  bill  must  be  dismissed  with  costs. 

Bill  dismissed. 


CASES  IN  CHANCERY.  ^ 


John  Bt.  Bomier  vs.  Thomas  Caldwell. 

When  it  appeared  that  A.  agreed  to  purchase  of  B.  a  certain  tract  of  land  and  pay  #150  fortlie  pj^^j  Circuit 
Bame;  that  at  the  lime  of  the  agreement,  A.  paid  B.  $S0;  tliat  B.  survejcd  tlie  land  and  put 
A.  in  possession  ;  that  A.  had  resided  on  tlie  land  for  several  years,  and  made  improvements 
to  the  value  of  from  ©200  to  ©500 ;  held  that  these  were  such  acts  of  part  performance  as  to 
take  the  case  out  of  the  statute  of  frauds,  and  to  authorize  u  decree  for  a  specific  perfor- 
mance to  convey,  upon  payment  of  the  balance  of  the  purchase  money  with  interest. 

The  bill  in  this  case  was  filed  for  a  specific  performance  of  a 
parole  contract  to  convey  land. 

The  bill  states  that  some  time  in  the  year  1830,  the  com- 
plainant and  defendant  entered  into  an  agreement,  in  and  by 
which  agreement  the  defendant  sold  to  the  complainant  a  cer- 
tain tract  of  land  situated  on  Otter  creek,  in  the  county  of 
Monroe,  being  three  arpents  in  front  and  twenty-five  in  depth, 
in  consideration  of  which,  the  complainant  was  to  pay  $150; 
$80  of  this  sum  was  to  be  paid  immediately  in  cattle,  and  the 
balance  in  the  three  years  thereafter;  that  it  was  understood  by 
the  parties  that  if  the  complainant  found  it  inconvenient  to  pay 
the  balance  in  three  years,  that  then,  and  in  such  case,  the  said 
defendant  was  to  give  further  time,  and  would  receive,  instead 
of  money,  cattle  or  grain,  as  might  suit  the  convenience  of  the 
complainant. 

The  bill  further  states,  that  the  agreement  was  not  reduced 
to  writing,  the  complainant  having  full  confidence  in  the  integ- 
rity of  the  defendant;  that  the  defendant  caused  a  survey  of 
the  land  in  question  to  be  made,  and  put  the  complainant  in  the 
full  possession  thereof,  which  possession  the  complainant  has 
ever  since  held,  and  paid  the  taxes  thereon;  that  the  complain- 
ant pursuant  to  said  agreement,  did  deliver  to  the  defendant, 
cattle  valued  at  f80;  that  on  the  10th  day  of  July,  1835,  the 
complainant  tendered  to  the  defendant,  the  sum  of  $94  50,  be- 
ing the  balance  of  the  consideration  money  and  interest,  which 
he  refused  to  accept. 

The  answer  denies  making  the  agreement  set  out  in  the  bill, 
but  admits  that  an  agreement  was  made, in  substance,  as  follows: 


68  CASES  IN  CHANCERY. 

First  circuit.  The  defendant  agreed  to  sell  the  land  in  question,  to  the 
complainant,  for  the  sum  of  either  three  or  two  dollars  per 
acre;  the  defendant  further  admits,  that  he  does  not  recollect 
whether  the  complainant  was  to  pay  two  or  three  dollars  per 
acre;  and  further,  that  the  defendant  was  to  receive  $80  in 
cattle  from  the  complainant,  in  part  payment,  upon  the  delivery 
of  possession  of  said  land;  the  defendant  further  states,  that 
the  complainant  further  agreed  to  deliver  to  the  defendant  du- 
ring the  fall  next  succeeding,  a  certain  yoke  of  oxen  as  a 
further  payment,  and  the  balance  in  three  years,  with  interest, 
and  also  to  pay  the  taxes  on  said  land,  and  on  two  other  tracts 
which  the  defendant  owned. 

The  defendant  denies  that  he  agreed  to  give  further  time  af- 
ter the  expiration  of  said  three  years,  to  pay  the  balance  of  the 
consideration  money,  should  the  complainant  find  it  inconve- 
nient to  pay  such  balance,  or  receive  grain  instead  of  money, 
or  any  other  cattle  than  the  yoke  of  oxen  which  the  defen- 
dant avers  the  complainant  was  to  deliver  in  the  fall;  the  de- 
fendant further  states,  that  it  was  understood  betw^een  the  par- 
ties, that  a  bond  for  a  deed  was  to  be  given  to  the  complainant 
upon  receiving  the  said  yoke  of  oxen,  and  a  deed  upon  the 
payment  of  the  whole  amount  agreed  to  be  paid. 

The  defendant  admits  that  in  the  fall  of  1835,  the  complain- 
ant called  upon  him,  and  said  that  he  was  ready  to  pay  the 
amount  due  for  the  purchase  of  the  said  tract  of  land.  &c.,  and 
further,  admits  that  the  complainant  asked  him,  the  defendant, 
to  receive  the  balance  due,  which  the  complainant  said  he  then 
had  in  money,  &c. 

Whipple  and  Vandyke,  for  complainant. 
F.  Johnson,  for  defendant. 

The  Chancellor. — From  the  testimony,  there  can  be  no 
doubt  that  the  agreement  between  the  parties  was  substantial- 
ly as  stated  in  the  bill. 

By  the  testimony  in  the  case,  it  appears  that  the  price  to  be 
paid  by  the  complainant  for  the  land  was  $150;  that  $80  was 


CASES  IN  CHANCERY.  0» 

paid  down,  leaving  only  a  balance  of  $70  due;  that  the  land  ^'"*^"="''- 
was  surveyed  by  defendant,  and  that  he  put  the  complainant  in     nomier 
possession.     It  further  appears  the  complainant  has  resided  on    CaWweii. 
the  land  ever  since,  and  that  he  has  built  an  addition  to  the 
house;    has  cleared,  fenced  and  improved  some  twenty-five 
acres  of  land,  and  set  out  an  orchard.     The  improvements  are 
estimated  by  the  witnesses  from  $"200  to  8500. 

The  payment  of  so  considerable  a  portion  of  the  purchase 
money;  the  being  placed  in  possession  by  the  defendant,  and 
the  long  occupation  by  the  complainant,  and  valuable  improve- 
ments made  by  him  on  the  premises,  arc  such  acts  of  part  per- 
formance as  to  take  the  case  out  of  the  statute  of  frauds. 

It  is  next  to  be  considered  whether  there  has  been  such  a 
neglect  to  perform  the  conditions  of  the  contract,  on  the  part 
of  the  complainant,  as  to  preclude  him  from  relief  in  this  court. 

There  is  some  discrepancy  between  the  answer  and  the  tes- 
timony as  to  what  the  precise  terms  of  the  agreement  were. 

The  witnesses  Lavigne  and  Antaillaird,  both  state  that  the 
agreement  was,  that  after  the  payment  of  880,  the  defendant 
was  to  give  the  complainant  three  years  to  pay  the  ■  balance, 
anfl  that  if  the  defendant  was  not  then  able  to  pay,  he  would 
give  liim  a  longer  time  and  would  not  trouble  him.  The  de- 
fendant, in  his  ansW'cr,  says  the  complainant  was  to  have  deli- 
vered to  him  another  yoke  of  oxen  in  the  fall,  and  that  then  he 
was  to  have  three  years  to  pay  the  balance.  He  further  says, 
his  object  in  selling  the  land  was  to  obtain  the  oxen  in  the  fall, 
and  also  because  he  should  want  money  at  the  end  of  three 
years. 

It  is  conclusively  established  that  the  price  to  be  paid  for 
the  land  was  $150,  and  that  $80  was  paid  down,  and  that  the 
balance  due  was  but  $70.  Now  if  the  oxen  had  been  deliver- 
ed in  the  fall,  at  $50,  there  would  have  been  but  $aO  remain- 
ing. 

It  seems  somewhat  strange  that  the  defendant,  (who  is  a  man 
of  wealth,  as  appears,)  should  let  either  the  one  or  the  other 
of  these  objects  form  the  inducement  to  the  sale. 

From  a  view  of  the  whole  case,  I  am  led  to  the  conclusion 


70  CASES  IN  CHANCERY. 

Firstcircuit.  tj^^t  this  matter  of  the  delivery  of  the  oxen  in  the  fall  did  not 
T-,.,„v.     form  anv  part  of  the  orisinal  contract,  and  that  this  matter  is 
Caldwell,    improperly  blended  with  the  agreement  set  up  in  the  answer. 
It  seems  incredible  that  three  years'  time  should  have  been  gi- 
ven to  pay  the  $20,  with  the  assurance  that,  if  it  should  be- 
come necessarv,  the  time  should  be  further  extended. 

The  defendant  states  in  his  answer,  that  he  does  not  re- 
member whether  the  price  of  the  land  was  $150  or  $225. 
Now,  if  he  cannot  remember  what  the  price  of  the  land 
was,  it  may  be  presumed,  without  any  imputation  of  inten- 
tional misstatement,  that  he  may  have,  so  far,  at  least,  for- 
gotten its  details  as  to  have  mingled  that  which  was  a  matter 
of  subsequent  conversation,  with  the  original  agreement.  Three 
witnesses  concur  in  their  statements  with  regard  to  the  price 
to  be  paid  for  the  land,  and  as  to  the  terms  of  agreement  be- 
tween the  parties,  and  this  statement  of  the  agreement  which 
is  given  by  the  witnesses,  was  made  by  the  parties  about  the 
time  the  same  was  made,  and  when  it  was  fresh  in  the  recol- 
lection of  both  the  complainant  and  the  defendant.  The  terms 
of  the  agreement  were  simple  and  easily  understood,  and  the 
witnessess  all'concur  that  $150  was  to  be  paid  for  the  land,  ^80 
of  which  paid  down;  the  balance  to  be  paid  within  three  years; 
that  the  complainant  stated  at  the  same  time  that  from  the  rela- 
tion which  existed  between  him  and  defendant,  that  if  defendant 
could  not  pay  him  the  balance  at  the  end  of  the  three  years, 
that  he  would  not  trouble  the  defendant,  but  would  give  him 
further  time.  Can  this  be  reconciled  at  all  with  the  fact  that  the 
balance  was  only  $20  ?  There  can  be  but  little  doubt  that  the 
witnesses  state  the  contract  correctly,  and  that  this  agreement 
to  deliver  the  cattle  in  the  fall,  and  to  pay  taxes,  was  in  pur- 
suance of  the  agreement  that  the  defendant  would  receive  cat- 
tle or  grain  for  the  balance.  This  is  perfectly  consistent  with 
the  conversation  between  the  complainant  and  the  defendant, 
mentioned  by  Le  Due,  in  his  testimony,  and  in  no  other  way 
can  the  whole  of  the  testimony  be  reconciled. 

When  the  defendant  said  to  the  complainant,  you  did  not 
bring  the  oxen,  the  complainant  replied,  by  way  of  apology, 


CASES  IN  CHANCERY.  71 

that  one  of  them  had  died;  and  this  conversation  is  perfectly  FirstCireuit. 
consistent  with  the  testimony  of  the  three  witnesses  first  na-  ^-^''^^"^^ 
med.     In  their  statement  of  the  agreement,  thei*e  appears  to    ^  ,?»•  „ 

"  7  ri  Caldwell. 

have  been  no  condition  that  the  complainant  was  to  deliver  to 
the  defendant  a  pair  of  oxen,  as  stated  in  the  answer.  This 
must  have  been  a  matter  of  a  subsequent  conversation,  and  in 
no  other  way  can  it  be  reconciled,  either  with  the  testimony 
or  the  other  facts  in  the  case. 

But  even  supposing  this  condition  had  made  a  part  of  the 
original  agreement  under  the  facts  in  the  case,  this  court  would 
hesitate  much  before  it  would  refuse  relief  to  the  complainant. 

Here  the  excuse  for  the  non-delivery  of  the  oxen,  was,  that 
one  of  the  oxen  died  before  the  time  they  were  to  have  been 
delivered;  the  defendant  permitted  the  complainant  to  remain 
in  possession,  without  taking  any  steps  to  rescind  the  agree- 
ment, until  1835,  and  permitted  him  to  go  on  uninterrupted  to 
make  valuable  and  permanent  improvements  on  the  premises. 
This  case,  in  itself,  is  not  of  great  importance,  but  it  is  impor- 
tant to  the  complainant,  as  it  involves  the  labor  of  many  years. 

I  cannot  well  conceive  of  a  case  which  would  call  more 
strongly  upon  the  court  to  decree  a  specific  performance  of  a 
contract,  on  the  ground  of  part  performance,  than  this;(l)  the 
tender  on  the  part  of  the  complainant  was  sufficient  under  the 
circumstances.  It  was  an  offer  to  pay  the  balance,  which  was 
refused  by  the  defendant. 

The  complainant  must  have  a  decree  for  a  specific  perfor- 
mance, upon  payment  of  the  balance  due,  with  interest. 

(1)  See  Burteh  vs.  Iloggc,  ante  31,  and  notes  1  and  2. 


7a  CASES  IN  CHANCERY. 


FirstGircuu.  David  Cooper  and  Charles  Jackson  vs.  Hiram  Al- 

"^"^^^^      DEN  and  others,  Commissioners  of  Internal  Im- 

Aiden.         provement,  and  Mayor,  &c.,  of  the  city  of  Detroit. 

An  injunction  granted  by  a  justice  of  the  supreme  court  in  cases  where  the  statute  authorizes 
it,  stands  upon  the  sanie  footing  as  if  granted  by  the  chancellor,  and  in  either  case  it  is  com- 
petent for  the  defendants  in  vacation,  and  before  they  put  in  their  answer,  to  move  lo  dissolve 
the  injimction  for  want  of  equity  in  the  bill. 

Purchasers  of  lots  in  the  city  of  Detroit  acquire  no  other  or  greater  rights  from  the  fact  that 
said  city  was  laid  out  by  the  governor  and  judges  of  the  late  territory  of  Michigan,  under 
an  act  of  Congress  authorizing  them  so  to  do,  than  they  would  acquire  if  the  same  had  been 
laid  out  by  an  individual  who  had  legally  dedicated  certain  portions  for  streets  and  alleys. 

Purchasers  of  lots  bounded  on  a  street  or  square,  acquire  a  right,  and  are  interested  in  the 
preservation  and  appropriation  of  such  street  or  square  to  the  uses  for  which  it  was  dedica- 
ted, and  the  city  corporation,  without  full  and  express  authority  so  to  do,  have  no  power  to 
grant  any  portion  of  such  public  street  or  square  to  be  used  for  any  purpose  destructive  of 
the  ends  for  which  it  was  originally  dedicated. 

Where  land  is  dedicated  to  a  particular  purpose,  and  the  city  authorities  have  appropriated  it 
to  an  entirely  different  one,  it  affords  ground  for  the  interference  of  a  court  of  chancery,  by 
injunction. 

The  corporation  of  the  city  of  Detroit  have  no  power  except  that  which  is  derived  from  the 
act  incorporating  the  same,  or  the  acts  sj)ecially  relating  thereto. 

Where  the  common  council  of  the  city  of  Detroit  granted  a  lease  of  a  portion  of  a  public 
street  in  said  city,  (though  under  a  resolution  of  a  public  meeting  of  the  freemen  of  the 
city  of  Detroit,)  to  the  commissioners  of  internal  improvement,  for  the  use  of  the  state, 
to  lay  a  railroad  track  and  erect  offices,  ifcc,  upon,  an  injunction  was  granted  to  restrain 
the  commissioners  from  so  doing. 

The  commissioners  of  Internal  improvement  have  no  right,  under  the  general  powers  con- 
ferred on  them,  lo  appropriate  a  portion  of  a  street  in  the  city  of  Detroit  for  the  purpose  of 
erecting  offices  and  other  buildings  thereon. 

This  court  has  undoubted  jurisdiction  lo  interfere  by  injunction  where  public  officers  are  pro- 
ceeding illegally  and  improperly,  under  a  claim  of  right  lo  do  any  act  to  the  injury  of  the 
rights  of  others. 

The  bill  in  this  case  was  filed  September  20,  1838,  and  sta- 
ted that  complainant,  Jackson,  was  the  owner  in  fee  of  the 
west  half  of  lot  number  43,  and  that  Cooper,  complainant,  was 
the  owner  in  fee  of  the  east  half  of  said  lot,  and  also  the  en- 
tire lot  42,  both  of  said  lots  being  in  section  six,  of  the  city  of 
Detroit,  according  to  the  plan  of  the  city,  made  and  adopted 
by  the  governor  and  judges  of  the  late  territory  of  Michigan, 
})ursuant  to  the  provisions  of  an  act  of  congress  for  that  pur- 
pose. 


CASES  IJN  CHAiNCEKi:.  73 

That  said  lots  were  situated  adjoining  and  fronting  on  a  pub-  First circujt. 
lie  street  called  Michigan  grand  avenue,  200  feet  %vide;  that  ^^^^^^ 
said  street  was  laid  out  and  established  as  a  public  street  and  ^^^^n, 
open  space,  not  only  for  the  free  and  uninterrupted  use  of  all 
the  citizens  as  a  street,  but  for  the  ornament  of  said  city,  and 
more  especially  for  the  convenience,  benefit,  use  and  healthful- 
ness  of  the  lots  adjacent  to,  and  situated  on  said  avenue.  That 
complainants,  and  those  through  and  under  whom  they  claim, 
had  been  in  the  full,  peaceable,  quiet  and  uninterrupted  posses- 
sion of  said  lots,  and  of  said  avenue,  as  an  easement  for  more 
than  twenty-five  years  last  past;  that  they  gave  a  much  great- 
er price  for  the  lots  than  thoy  would  have  done,  had  they  sup- 
posed they  did  not  acquire  a  vested  right  in  said  avenue,  as 
permanent  and  indefeasible  as  in  the  lots  themselves;  that  they 
had  expended  large  sums  of  money  in  improving  said  lots;  had 
erected  expensive  buildings,  and  actually  resided  thereon  with 
their  families  for  several  years. 

That  the  mayor,  recorder,  aldermen,  &c.,  of  the  city  of  De- 
troit, September  4,  1838,  executed  a  lease  to  the  people  of  the 
state  of  Michigan,  reciting  that, 

''Whereas,  pursuant  to  a  call  of  the  mayor  of  the  city  of 
Detroit,  a  meeting  of  the  freemen  was  held  at  the  city  hall, 
in  said  city,  on  Thursday  the  second  day  of  August,  A.  D. 
eighteen  hundred  and  thirty-eight :  and  whereas,  after  said 
meeting  was  duly  organized,  and  the  object  of  the  call  explain- 
ed, the  following  resolution  was  adopted  by  said  meeting,  viz. 

"Resolved,  That  the  common  council  of  said  city,  be  au- 
thorized to  lease  to  the  state  of  Michigan  a  space  in  Michigan 
grand  avenue,  between  the  city  hall  and  Bates  street,  adjoin- 
ing Bates  street,  sixty  feet  in  width  and  extending  one  hundred 
and  forty  feet  towards  the  city  hall,  for  the  purpose  of  erect- 
ing a  brick  building  for  a  depot  for  passenger  cars,  and  for  oth- 
er purposes  connected  with  the  operations  of  the  central  rail- 
road; and,  also,  the  privilege  of  laying  a  track  or  tracks,  from 
the  present  termination  of  the  railroad,  in  the  most  eligible 
manner  to  the  aforesaid  ground  between  Bates  street  and  the 
city  hall. 

Vol.  I.  10 


Cooper 

vs. 
Alden. 


T4  CASESS  IN  CHANCERY. 

Firstcircuit.  "  Now,  therefore,  be  it  known,  that  the  common  council  of 
said  city,  in  obedience  to  the  resolution  of  the  freemen  of  said 
city,  above  recited,  so  far  as  they  have  power  and  authority 
under  the  city  charter  and  amendments  thereto,  and  without 
the  intervention  of  a  jury  to  assess  private  damages,  and  in 
this  manner  so  to  do,  do  hereby  lease  to  the  people  of  the  state 
of  Michigan,  all  that  space  of  ground  in  the  centre  of  Michi- 
gan grand  avenue,  in  said  city,  between  the  city  hall  and  Bates 
street,  sixty  feet  in  width  on  the  west  side  of  Bates  street,  ad- 
joining said  Bates  street,  and  extending  one  hundred  and  forty 
feet  towards  the  city  hall,  for  the  purpose  of  erecting  there- 
upon a  brick  building  to  be  used  as  a  passenger  car  house,  and 
for  railroad  offices,  connected  with  the  operations  of  the  Cen- 
tral railroad  only:  and  the  said  common  council,  so  far  as  they 
have  power  as  aforesaid,  do  hereby  also  grant  to  the  people 
of  the  state  of  Michigan,  the  other  privileges  in  said  resolu- 
tion of  the  freemen  above  recited,  contained  for  the  purposes 
therein  specified. 

"It  beins  always  understood,  however,  and  these  presents 
are  upon  these  express  conditions  and  not  otherwise,  viz: 

"  That  these  presents  and  the  privileges  and  ground  hereby 
granted  and  leased  to  the  people  of  the  said  state,  shall  con- 
tinue and  be  in  force  so  long  as  said  ground  and  the  buildings 
thereon  to  be  erected,  and  said  privileges  shall  be  used  and 
occupied  for  the  purposes  herein  before  specified  and  mention- 
ed, and  that  as  soon  as  they  shall  cease  to  be  thus  used  and  oc- 
cupied, they  shall  all  and  singular  forthwith  revert  to  the  may- 
or, recorder,  aldermen  and  freemen  of  the  city  of  Detroit,  and 
these  presents  from  thenceforth,  be  null  and  void. 

"And  upon  the  further  condition,  that  no  more  than  one  track 
or  railway  shall  be  placed  or  made  across  Woodward  avenue, 
from  the  present  termination  of  the  railroad,  for  the  purpose 
of  arriving  at  said  passenger  car  house: 

"And  upon  this  further  condition,  that  in  case  the  people  of 
said  state,  or  their  agents,  or  the  commissioners  of  the  Cen- 
tral railroad,  or  the  acting  commissioner  thereof,  do  not,  with- 
in one  month  from  this  date,  notify  the  common  council  of  said 


CASES  IN  CHANCERY.  75 

City  of  the  acceptance  of  this  lease  and  privileges  hereby  grant-  First circutt. 
ed,   subject  to   the  provisions,    conditions    and  understandino-  ^^^^^"^^ 

,  .       ,  J  .  *        Cooper 

herein  before  and  herein  after  contained,  or  in  case  the  said  Jf- 
people  or  their  agents,  or  said  commissioners  or  commissioner, 
or  his  or  their  successors  in  office,  do  not,  witliin  the  period  of  one 
year  from  and  after  the  date  of  such  notification  to  said  com- 
mon council,  have  erected  and  completed  the  aforesaid  brick 
building,  and  in  use  for  the  purposes  aforesaid;  then,  and  in 
each  of  these  cases,  these  presents  shall  cease,  be  inoperative, 
null  and  void.  And  these  presents  are  upon  this  further  ex- 
press condition  and  understanding,  and  not  otherwise,  viz:  that 
the  said  state  of  Michigan  shall  and  will,  from  time  to  time, 
and  at  all  times  save  harmless  and  keep  indemnified  said  com- 
mon council,  and  every  member  thereof,  and  the  mayor,  re- 
corder, aldermen  and  freemen  of  the  city  of  Detroit,  of  and 
from  all  damages,  sums  of  money,  costs,  charges,  troubles, 
suits  and  expenses,  which  they,  or  any  of  them,  shall  or  may 
at  any  time  hereafter  be  put  unto,  by  being  compelled  to  pay 
damages,  or  sums  of  money  to  individuals  b}^  reason  of  said 
common  council  having  executed  these  presents,  or  on  account 
of  said  space  of  ground  and  privileges,  hereby  granted,  being 
used  or  occupied  as  aforesaid.     In  testimony,"  &c. 

That  if  said  road  should  be  constructed  and  laid  down  as 
contemplated,  it  would  pass  along  the  entire  front  of  complai- 
nants' dwelling  houses  and  premises,  on  Michigan  grand  ave- 
nue, and  near  to  the  same;  and  that  if  the  building  contem- 
plated by  the  lease  should  be  erected,  it  would  greatly  in- 
cumber said  avenue,  and  block  up  and  obstruct  the  free  use 
of  the  same,  and  extend  across  the  entire  front  of  said  lots,  to 
the  great  annoyance  and  damage  of  complainants.  The  bill 
charged  that  the  lease  was  made  without  authority;  it  further 
stated  that  the  commissioners  of  internal  improvement  did,  on 
or  about  the  same  day  the  lease  was  made,  accept  the  same  in 
behalf  of  the  people  of  the  state  of  Michigan,  and  by  a  resolu- 
tion of  the  board,  directed  the  acting  commissioner  on  the  cen- 
tral railroad,  to  go  on  and  erect  the  buildings,  and  lay  down 
the  track  of  the  railroad  as  contemplated  in  the  lease,  without 


76  CASES  IN  CHANCERY. 

Firstcircuit.  providing  any  compensation  whatever  for  complainant's  dama- 
"""^""^^  ges;  that  Hiram  Alden,  the  acting  commissioner,  had  em- 
Jin  ployed  engineers  and  other  persons,  and  actually  commenced 
the  construction  of  said  road  and  buildings,  and  threatened  to 
continue  the  same;  that  the  necessary  grade  for  said  road 
would  elevate  the  same  from  one  to  three  feet  above  the  gene- 
ral level  of  said  avenue. 

The  bill  prayed  an  injunction  to  restrain  the  commissioners 
from  constructing  the  road  and  erecting  the  buildings,  in  said 
Michigan  grand  avenue,  &c. 

Upon  proof  of  the  sickness  of  the  chancellor,  an  injunction 
was  granted,  according  to  the  prayer  of  the  bill,  by  the  Hon. 
George  Morell,  one  of  the  justices  of  the  supreme  court,  Sep- 
tember 20,  183S. 

A  motion  was  now  made  to  dissolve  the  injunction  for  want 

of  equity  in  the  bill. 

P.  MoREY,  Attorney  General,  for  defendant  Alden. 

1.  The  complainants  do  not  show  such  rights  as  will  autho- 
rize the  court  to  interfere  in  their  behalf  by  injunction,  nor 
such  a  case  as  will  sustain  a  decree. 

2.  If  the  court  should  be  against  us  on  the  first  point,  then 
we  say,  that  by  their  own  showing  in  the  bill,  they  have  an 
ample  and  complete  remedy  at  law  for  the  injury  complained 
of;  for  if  they  have  rights  to  sustain  this  proceeding,  they 
must  have  sufficient  to  sustain  a  suit  at  law  for  the  trespass; 
or,  if  their  property  is  injured,  they  can  appeal  to  the  apprai- 
sers under  the  provisions  of  the  15th  section  of  the  act  for  the 
regulation  of  internal  improvement,  &c.,  page  197,  session 
laws  of  1837. 

3.  By  the  provisions  of  the  20th  section  of  the  act  relative 
to  the  city  of  Detroit,  approved  April  4,  1827,  and  the  1st  sec- 
tion of  an  act  to  amend  the  same,  approved  June  29,  1832, 
the  common  council  are  vested  with  full  power  and  authority 
"  to  make  or  alter''  streets  and  "  generally  to  do  and  perform 
under  the  by-laws  and  ordinances  or  other  directions  of  the 
common  council,"  whatever  may  be  for  the  regularity,  public 
health,  and  convenience  of  the  city.     {See  pages  10  and  25  of 


CASES  IN  CHANX'ERY.  Tt 

the  pa?nplilet  collection  of  the  by-laws  and  ordinances  of  the  city,  Fi"i circuit. 
edition  of  1836.)     And  by  the  lease  set  out  in  the  bill,  all  this     ,.     „, 
power  is  delegated    to   the  board   of  internal   improvement.      AWrn. 
This,  it  is  contended,  must  operate  as  an  estoppel  of  any  claim 
of  the  complainants,  and  as  a  relinquishment  of  damages  by 
the  city  of  Detroit;  and  on  this  ground,  it  is  contended  there 
is  no  equity  shown  in  complainants'  bill,  or  rather  that  their 
own  showing  divests  them  of  a  right  to  interfere. 

4.  But  conceding  all  other  grounds,  it  is  still  contented  that 
the  "right  of  eminent  domain,'^  under  our  constitution  and  laws, 
must  remain  with  the  sovereign  power,  the  people;  and  that 
the  defendant,  Hiram  Alden,  acting  commissioner  of  the  cen- 
tral railroad,  who  appears  for  the  purpose  of  making  this  mo- 
tion, loas  hut  acting  as  the  agent  of  the  people  in  the  exercise  of 
this  rights  in  doing  the  acts  complained  of  in  the  bill,  and  con- 
sequently that  no  court  can  interfere  with  or  restrain  him  and 
his  associates,  in  the  exercise  of  the  power  thus  delegated  to  thein 
by  the  sovereignly  of  the  state. 

It  is  urged  that  this  right  of  "  eminent  domain'''  was  intended 
to  be  exercised  by  the  legislature,  and  that  it  is  fully  delega- 
ted to  the  commissioners  of  internal  improvement  by  the  15th 
section  of  the  act  for  the  regulation  of  internal  improvement, 
and  for  the  appointment  of  a  board  of  commissioners,  approved 
March  21,  1837.    {See  session  laws  of  1837,  pages  197  and  198.) 

The  following  authorities  are  referred  to  as  fully  sustaining 
the  construction  contended  for:  Rogers  vs.  Bradshaw,  20  John. 
R.,  735,  and  cases  cited;  Wheelock  vs.  Young  and  Pratt,  4 
Wend.,  647;  Beehnan  vs.  Saratoga  and  Schenectady  R.  R.  com., 
3  Paige  Ch.  R.,  72,  73,  and  cases  cited;  Varick  vs.  Smith  and 
Attorney  General,  5  Paige  Ch.  R.,  137;  the  Mohaick  bridge 
com.  vs.  tlie  Utica  and  Schenectady  R.  R.  company,  6  Paige, 
560  to  565;  and  the  Charles  river  bridge  com.  vs.  the  Warren 
bridge  com.,  11  Peters  R.,  536  to  583,  and  the  cases  cited. 

5.  It  is  contended  also,  that  the  allegations  in  the  bill  show  that 
the  people  of  the  state  of  Michigan,  the  grantees  in  the  lease, 
which  the  complainants  seek  to  have  delivered  up  to  be  can- 
celled, should  have  been  made  parties  to  the  bill,  and  that  the 


vs. 
A'dcn. 


78  CASES  IN  CHANCERY. 

First  Circuit,  injunction  should  be  dissolved  because  their  rights  cannot  be 
^"i!"^"^^  infrinn-ed  in  a  case  to  which  they  are  not  parties. 

Cooper  c  ./J 

WooDBRiDGE  and  Backus,  contra. 

W.   WoODBRIDGE. 

The  injunction  was  allowed  from  and  upon  the  case  pre- 
sented by  the  bill,  ivhich  is  sworn  to.  The  bill  was  filed  and 
injunction  allowed  about  the  20th  Septen:iber.  Abundant  time 
has,  therefore,  been  given  to  defendants,  by  answer,  to  exhibit 
a  new  case,  or  to  vary  that  w^e  present.  But  this  has  not  been 
done.  The  case  now  before  the  chancellor,  is  identically  the 
same  as  that  upon  which  the  injunction  was  allowed.  The 
parties  and  the  chancellor  cannot  travel  out  of  it;  and  after 
the  expiration  of  thirty  days,  the  chancellor  is  called  upon  to 
review  and  reverse  his  decision,  without  the  presentation  of 
any  oiie  additional  fact,  while  yet  at  chambers;  when  out  of 
term,  a  question  is  decided  by  a  judge,  it  is  in  general,  incom- 
petent, and  certainly  contrary  to  all  legal  analogies,  to  require 
such  review  and  reversal,  until  the  next  regular  term.  If  it  be 
the  same  judge,  the  application  is  not  very  courteous;  if  it  be 
another  ]v\dge,  considerations  of  delicacy,  strengthen  the  objec- 
tion. If  answer  had  come  in,  or  if  in  any  way  without  an- 
swer, the  case  had  been  varied,  (which,  without  answer,  I  ap- 
prehend could  not  be,)  then  such  objection  would  be  obvia- 
ted. But  when  all  is  identically  the  same,  then,  if  the  in- 
junction were  dissolved  to-day,  the  complainants  may,  with 
equal  propriety  certainly,  make  application  to-morrow,  to  re- 
instate the  injunction.  The  precedent  would  be  a  had  one; 
the  course  would  lead  to  great  inconvenience  and  uncertainty, 
as  regards  both  the  chancellor  and  the  action  of  parties,  (for 
what  reliance  can  there  be  placed  upon  a  decision  at  cham- 
bers ?)  and  according  to  all  legal  analogies,  irregular.  If  a 
new  or  a  varied  "case"  had  been  presented  by  the  coming  in  of 
answer,  very'good  reasons  may  be  urged  for  acting  in  vacation 
upon  such  motion. 

That  the  complainants  have  rights,  and  are  entitled  to  the 
protection  of  the  law,  no  doubt  can  be  rationally  entertained. 


CASES  IN  CHANCERY.  79 

Their  lots  and  dwelling  houses  border  upon  Michigan  grand  Firstcircit. 
avenue.     This  piece  of  pubhc  ground,  is  200  feet  wide.     It  is  ^"^^^^^ 
situated  in  a  part  of  the  city,  designed  rather  for  healthy  and     Ai'd;„. 
desirable  residences,  than  as  a  place  for  mercantile  or  other 
business.     Its  great  width,  manifestly  shows  its  dedication  to 
the  uses,  not  merely  of  a  public  highway,  but  as  a  place  of  pub- 
lic resort;  as  a  public  walk  and  an  ornament  to  the  city.     It  is 
doing  violence  to  common  sense  to  suppose  that  the  owners  of 
lots  and  residences  bordering  upon  it,  have  not  an  interest  in 
its  preservation  as  such.     No  person  conversant  with  the  pro- 
cess of  the  settlement  of  new  countries,  would  hesitate  a  mo- 
ment in  avowing  it  as  an  universal  sentiment,  that  every  per- 
son buying  a  lot  in  any  part  of  a  newly  laid  out  village  or 
town,  acquires  thei'eby,  an  interest  and  a  right,  in  the  preserva- 
tion of  every  street,  public  square  and  avenue,  and  their  con- 
tinued application  to  the  uses  to  which"  they  were  originally 
dedicated;  and  the  authorities  abundantly  sustain  the  propo- 
sition as  the  law  of  the  land.     The  case  of  Weyman  vs.  the 
Mayor.  4'C-,  H  Wendell,  486,  and  of  the  Citij  of  Cincinnati  vs. 
Lessees  of  White,  6  Peters,  431,  and  all  the  most  respectable 
courts,  it  is  believed,  affirm  the  doctrine  of  the  existence  of 
such  right;  and  that  it  passes  to  each  vendee,  loith  his  grant 
and  as  a  part  of  it,  as  well  as  to  the  public;  and  should  any 
city  corporation  undertake  to  apply  such  street,  public  ground 
or  common,  to  any  use  other  than  that  to  which  it  was  origi- 
nally designed,  a  court  of  chancery  would  compel  such  cor- 
poration, as  trustees,  to  desist,  and  apply  it  as  originally  de- 
signed. 

Now  this  right  of  the  complainants,  their  privileges,  fran- 
chises, incorporeal  hereditaments  in  the  premises,  are  disturbed 
by  the  defendants.  They  are  threatened  with  total  destruc- 
tion. This  public  ground  is  sought  to  be  applied  to  purposes 
totally  destructive  of  those  to  which  it  was  originally  dedicated 
by  the  United  States,  (the  original  proprietary  owners  of  the 
soil,  as  well  as  the  supreme  political  sovereign,  for  the  time 
being,  of  the  country.)  Instead  of  a  free  and  salubrious  at- 
mosphere, and  a  beautiful  green  before  their  doors,  a  public 


80  CASES  IN  CHANCERY. 

Firstcircuit.  walk,  Uninterrupted  by  violence,  shaded  by  trees  and  orna- 
''"^^^'^^  mented  by  bordering  public  and  private  buildings,  (as  such  pub- 
AJden.  Jic  grounds  usually  are,)  there  are  to  be  substituted  the  smoke 
and  dust  and  fire  of  noisy  steam  engines,  passing  by  their 
doors;  putting  in  jeopardy  the  lives  of  such  children  and  oth- 
ers, as  may  venture  from  their  doors;  the  crowd  and  bustle 
of  congregating  passengers,  and  baggage  and  merchandize; 
and  with  all,  the  positive  inhibition  from  passing,  at  pleasure, 
across  the  avenue,  from  one  side  to  the  other;  or  of  riding  or 
walking  along  or  upon  the  railroad,  its  paths  or  embankments, 
under  the  severe  statutory  penalties  of  fine  and  imprisonment. 
And  all  this,  according  to  the  case  made  by  the  bill,  (to  which 
the  parties,  in  the  present  stage  of  the  matter,  must  remain 
confined,  without  any  adequate  or  legal  authority.  Deep 
ditches  are  to  be  dug,  the  surface  of  the  earth  graded'mio  eve- 
ry irregularity,  and  a  large  building,  sixty  by  one  hundred  and 
twenty  feet,  suitable  for  artizans,  work  shops  and  storehouses 
erected,  obstructing  the  prospect  and  destroying  the  beauty  of 
this  public  ground,  in  the  progress  of  creation. 

To  protect  against  such  infringements  of  our  rights  and  to 
inhibit  the  erection  of  these  works  and  buildings,  until,  at  least, 
some  right  or  justification  can  be  shown  upon  answer  or  plea, 
the  complainants  appeal  to  the  chancellor  and  obtain  an  injunc- 
tion. The  defendants  now,  at  chambers,  move,  and  without 
filing  plea  or  answer,  for  the  dissolution  of  such  injunction,  and 
object,  First,  That  chancery  has  not  jurisdiction;  the  remedy 
is  at  law,  where,  if  there  be  right,  adequate  damages  may  be 
obtained. 

To  this  objection  it  is  answered,  that  the  nature  of  the  inju- 
ry goes  to  the  total  destruction  of  the  right,  and  that  the  da- 
mages cannot  well  be  estimated  at  law.  It  is  the  course  of 
chancery  rather  \o  prevent  the  injury,  where  it  goes  to  the  de- 
struction of  the  right,  before  it  is  yet  consummated,  than  to 
turn  the  party  over  for  damages,  which  cannot,  any  how,  well 
be  measured.  It  is  upon  this  principle  that  injunctions  issue  to 
prevent  the  erection  of  a  house  or  a  wall  against  any  window, 
until  the  right  can  be  tried,  although,  if  erected,  it  would  not 


CASES  IN  CHANCERY.  81 

order  it  pulled  down  until  the  right  was  tried.     {Sec  1  Ves.,  Fifstc'rcuu. 
543.)     So  chancery  will  inhibit  the  digging  of  ground,  though     cooper 
a  mere  trespass,  for  which  damage  would  be  obtained,  1  Vcs.,      AWen. 
188;  but  it  is  too  late  to  question  the  jurisdiction  of  the  court. 
The  case  of    United  States  Bank  vs.  Osborne  and  others,  9 
Wheat.,  733,  was  far  more  open  to  objection  than  this  case. 

Second,  It  is  further  objected  that  the  acts  complained  of 
are  done  and  being  done  under  the  authority  and  by  the  order 
of  the  constituted  authorities  of  the  5tate. 

To  this,  it  is  answered,  Fast,  That  this  is  travelling  out  of 
the  case,  which  negates  such  pretensions,  and  if  the  fact  icere 
so,  it  should  be  shown  by  answer  or  plea. 

But  suppose  it  were,  as  thus  irregularly  pretended,  we  an- 
swer. Second,  The  rights  and  franchises  sought  to  be  de- 
stroyed, were  granted  to  us  by  the  United  States,  as  the  own- 
ers of  the  soil,  as  well  as  the  political  sovereign  of  the  coun- 
try, and  that,  under  our  constitutions  of  government,  such 
grant  cannot  be  revoked  without  our  consent,  and  we  refer  to 
the  case  of  Fletcher  and  Peek,  Cranch  87.  {See  2  condens- 
ed Rep.  U.  S.,  308,  and  note,  325  to  332.)  That,  although 
that  political  sovereignty  may  have  changed  hands,  and  now 
be  vested  in  the  state,  yet  that  the  same  incapacity  attaches, 
under  the  constitution  of  the  United  States  and  of  this  state,  to 
the  successor  of  the  former  sovereign,  and  refer  to  the  Bart- 
mouth  College  case,  4  Wheat.,  518,  where  it  was  decided^that 
grants  of  franchises  and  incorporeal  heraditaments  by  the  go- 
vernment of  England,  could  not  now  be  revoked,  against  con- 
sent, by  its  successor,  the  sovereign  state  of  New  Hampshire. 

Third,  But  it  is  further  persisted  in  by  defendants,  tiiat  the 
acts  complained  of,  are  the  acts  of  the  legislature,  whose  pow- 
er is  transcendent;  that  private  right  and  private  property  must 
always  be  holden  subservient  to  public  necessity,  and  pubUc 
interest  and  convenience;  that  upon  the  devolution  of  the  pow- 
ers of  sovereignty  upon  the  new  state,  such  new  state  neces- 
sarily became  vested  with  the  power  of  making  roads  where- 
soever it  pleaded,  and  for  such  purpose  to  take  private  proper- 
ty; that  in  any  pressing  exigency,  (of  which  the  state  authon- 

VOL.  I.  11  ' 


83'  CASES  IN  CHANCERY. 

FiTBicircuH.  tjes  must  judgc,  as  in  case  of  war,)  a  fort  might,  by  them,  be 
Cooper  again  erected  here,  and  the  public  and  private  buildings  and  all 
Awen.  the  ornaments  and  property  of  this  city  be  levelled  for  a  pa- 
rade ground.  That  such  povsrers  are  among  the  attributes  of 
sovereignty,  lodged  with  the  legislature,  which  legislature  will 
alone  judge  of  the  necessity,  carry  its  mandate  into  execution, 
and  without  any  other  responsibility  than  that  which  it  owes 
"  to  those  who  placed  them  there."  :-! 

To  this  it  would  likewise  be  a  sufficient  answer  Aere,  to  say 
that  it  is  traveling  out  of  the  case;  since  none  of  these  things,  as 
yet,  appear  in  it,  nor  is  it  consistent  with  judicial  propriety,  with- 
out answer  or  plea,  to  argue  from  facts  which  do  not  appear 
in  the  cases  before  the  court.  But  as  matters  of  fact  and  of 
law,  it  does  not  appear,  nor  can  it,  that  the  legislature  of  Michi- 
gan has  authorized  any  of  these  things. 

The  eastern  terminus  of  the  Detroit  and  St.  Joseph  railroad, 
had  been  established  by  the  company,  of  which  the  state  be- 
came the  assignee;  and  whether  correctly  or  not  established, 
the  legislature  has  expressly  confirmed  it.  {SeeJlcts  of  1837, 
page  131,  sec.  2.)  And  although  it  has  given  to  the  board, 
upon  condition,  power  to  extend  the  railway  down  Woodward 
avenue  to  Atwater  street,  {See  Acts  of  1837-8,  page  291,)  yet 
no  authority  can  be  found  to  extend  it  into  Michigan  grand 
avenue;  nor  among  the  general  powers  conferred  upon  the 
board,  can  we  discover  any  which  could  authorize  them  thus 
to  close  any  public  highway,  and  still  less  any  public  avenue 
of  the  city;  nor  indeed,  for  reasons  already  alluded  to,  and  be- 
cause every  corporate  body  is  confined  to  the  exercise  of  pow- 
ers expressly  granted,  can  the  corporation  of  the  city  legally 
execute  such  a  lease  as  in  the  bill  described.  {See  2  Cranch, 
127;  1  United  States  Condensed  Rep.,  371,  and  noteJ)  But  if 
the  facts  had  been  as  represented  by  defendants,  it  is  still  im- 
possible that  the  doctrines  advanced  by  them,  should  be  ac- 
quiesced in. 

By  the  grant  of  general  legislative  power  to  the  legislature 
of  Michigan,  the  people,  in  their  constitution,  say,  the  govern- 
ment have  given  that  body  the  right  of  taking  all  private  pro- 


CASES  IN  CHANCERY.  «• 

perty,  whenever  the  public  necessity,  (as  in  case  of  war,)  or  ^^J^^l^JIJ^ 
pubiic  convenience,  (as  incase  of  roads,)  require  it;  that  the     cooper 
legislature    have   the   exclusive  and  uncontrolable  power  of     Aidcn. 
judging  and  determining  of  the  existence  of  such  public  ne- 
cessity and  of  such  public  convenience;  that  such  high  discre- 
tionary power  must  exist  in  every  government;  that  with  us, 
it  is  vested  in  the  legislative  body,   and  that  our  guaranty 
against  the  abuse  of  such  high  power,  consists  in  the  respon- 
sibility of  the   legislators  to  those  who  appointed  them,  &c. 
Now,  without  dwelling  upon  doctrine  so  bold  and  so  dange- 
rous, it  may  be  sufficient  to  observe,  that  it  cannot  escape  ob- 
servation, that  such  political  maxims,  when  applied  as  the  or- 
dinary rule  of  action,  at  once  annihilate  all  distinction  be- 
tween governments  which  are  of  limited  and  defined  powers, 
and  whose  difterent  branches  are  distributed  into  various  inde- 
pendent and  co-ordinate  bodies,  each  deriving  all  its  powers 
from  a  written  constitution,  formed  and  adopted  by  the  people 
in  their  sovereign  capacity,  (and  principally  for  the  very  pur- 
pose of  restraining  those  different  authorities,)  and  those  go- 
vernments in  which  there  are  no  constitutions.     Of  the  parlia- 
ment of  Great  Britain  it  may  be  properly  said,  that  the  only 
guaranty  for  the  safety  of  the  rights  of  private  property,  con- 
sists in  "the  responsibility  of  the  legislators  to  those  who  ap- 
pointed them;"  but  if  the  same  maxim  is  to  hp.  enforced  here, 
of  what  use  or  avail  are  written  constitutions  here  ? 

If  a  majority  of  our  legislature,  in  the  exercise  of  the  high 
power  alluded  to,  should  think  proper  to  declare  that  "  the 
public  necessity"  required  that  your  vested  rights  of  property 
should  be  taken  from  you,  and  that  "  the  public  convenience" 
required  that  a  turnpike  road  should  be  opened  through  your 
parlor,  who,  upon  the  maxim  contended  for,  can  gainsay  it  ? 
Of  what  use" to  you,  then,  are  the  constitutional  guards  of  the 
governments  of  the  United  States,  and  of  this  state,  for  the 
rights  of  private  property?  If  it  be  answered  that  this  is  ar- 
guing upon  the  possible  or  probable  abuse  of  power,  then  I  an- 
swer, that  it  was  to  guard  against  such  possible  or  probable 
abuse  of  power,  alone,  that  such  guards,  as  exist  there,  were 


84  CASES  IN  CHANCERY. 

Firstcircuit.  inserted  in  the  constitutions  of  the  United  States  and  of  this 
Cooper  state.  Public  necessity  ! — so  a  Roman  senate  declared — re- 
AWen.  quired,  that  Julius  Csesar  should  be  made  dictator,  and  he  be- 
came such.  The  legislative  power  of  France,  from  principles 
of  public  necessity  and  expediency,  deemed  it  proper  that 
Napoleon  should  be  first  consul — who  could  prevent  it?  The 
Rump  parliament  thought  that  the  "public  convenience" 
would  be  best  promoted  by  appointing  Oliver  Cromwell  to  be 
protector,  and  "  being  responsible  ever  to  those  who  appointed 
them,"  they  so  declared  ! 

H.  T.  Backus  submitted  a  written  argument. 

"  The  Chancellor. — A  preliminary  objection  is  made  by  the 
counsel  for  the  complainants,  that  the  injunction  in  this  case,  ha- 
ving been  allowed  upon  the  bill,  as  sworn  to,  and  no  answer 
having  been  put  in,  nor  the  state  of  the  case  varied,  it  is  not 
competent,  or  according  to  the  course  of  practice,  to  move  to 
dissolve  on  the  same  state  of  facts  in  vacation. 

Our  statute  (R.  S.,  376,  sec.  103,)  authorizes  the  justices  of 
the  supreme  court  severally,  to  "exercise  the  powers  of  the 
chancellor,  with  respect  to  the  granting  of  injunctions,"  in  cer- 
tain cases.  An  injunction  granted  by  a  justice  of  the  supreme 
court,  in  cases  where  the  statute  authorizes  it,  stands  upon  the 
same  footing  ns  if  granted  by  the  chancellor,  and  in  either 
case,  it  is  competent  for  the  defendants  m  vacation,  and  before 
they  put  in  their  answer,  to  move  to  dissolve  the  injunction  for 
ths  want  of  equity  in  the  bill.  [See  Minium  vs.  Seymour,  4 
Johns.  Ch.  Rep.,  173.) 

It  is  urged  by  the  counsel  for  the  complainants,  that  the 
mayor,  recorder  and  aldermen  had  no  authority  to  make  the 
lease  to  the  commissioners  of  internal  improvement;  that  the 
city  of  Detroit,  having  been  laid  out  by  the  government  of  the 
United  States,  and  lots  purchased  with  reference  to  the  plan 
of  the  city,  adopted  by  the  government  at  the  time  of  laying 
out  the  same,  the  purchasers  have  acquired  vested  rights  of 
such  a  character,  that  the  plan  of  the  city,  thus  adopted  and 
cstabhshed,  cannot  be  changed  or  in  any  manner  interfered 


CASES  IN  CHANCERY.  85 

with,  even  by  the  full  and  express  authority  of  legislative  povv-  r''^''»<^''<="'*- 
er,  and  that  the  exercise  of  such  a  power  is  regarded  in  the     coopcr 

Vg. 

light  of  a  revocation  of  a  grant,  or  the  violation  of  the  obliga-  Aiam. 
tion  of  a  contract,  and  the  cases  of  Fklcher  vs.  Peck,  and 
Dartmouth  College  vs.  Woodward,  are  cited  in  "support  of  this 
doctrine.  I  cannot  view  the  question  in  this  light.  I  am  una- 
ble to  perceive  that  the  United  States,  by  authorizing  their 
trustees,  the  governor  and  judges,  to  lay  out  a  town,  intended 
to  convey  or  did  convey,  any  other  or  greater  rights  to  pur- 
chasers of  lots  in  the  premises,  than  would  be  acquired  by  pur- 
chasers of  lots  where  an  individual  had  laid  out  a  town  or  city, 
and  had  legally  dedicated  certain  portions  for  streets  and  al- 
leys, on  which  lots  were  bounded.  But  it  is  undoubtedly  true 
that  purchasers  of  lots  bounded  upon  a  street  or  square,  ac- 
quire a  right  and  are  interested  in  its  preservation,  and  the  ap- 
plication of  such  street  or  square  to  the  uses  for  which  it  was 
dedicated;  and  should  any  city  corporation,  without  full  and 
express  authority  so  to  do,  undertake  to  grant  any  portion  of 
such  public  street  to  other  individuals,  to  be  used  for  any  pur- 
pose which  should  be  destructive  of  the  ends  for  which  such 
street  was  originally  dedicated,  such  grant  would  be  void.  It 
is  not  necessary  to  discuss  at  present,  the  extent  or  the  limits 
of  the  legislative  power  to  authorize  an  improvement  in  a  city 
or  town,  by  the  change  of  a  plan,  or  a  mere  easement  as  a 
right  of  way  for  a  railroad,  or  even  the  absolute  appropriation, 
for  the  purpose  of  erecting  permanent  public  buildings. 

If  the  ground  had  been  dedicated  to  a  particular  purpose, 
and  the  city  authorities  had  appropriated  it  to  an  entirely  dif- 
ferent one,  it  might  afford  ground  for  the  interference  of  a 
court  of  chancery  to  compel  an  execution  of  the  trust,  by  re- 
straining the  corporation,  or  causing  the  removal  of  the  ob- 
struction. {Sec  Barkley  vs.  HowelVs  Trustees,  6  Peters'  Rep., 
507.) 

It  is  contended  that  the  common  council  of  the  city  of  De- 
troit, in  granting  the  lease  set  out  in  the  bill,  have  exceeded 
their  powers;  that  no  such  authority  has  been  given  to  the 
city  authorities  by  the  statutes  creating  and  governing  the  cor- 


86  CASES  IN  CHANCERY. 

First  Circuit.  poratioH,  and  that  the  act  making  such  grant  is  void,  and  can 
Cooper     in  no  manner  effect  the  rights  of  the  complainants. 
Aiden.         The  authority  of  the  common  council  to  lay  out,  change  or 
alter  any  street  or  highway,  is  contained  in  the  second  section 
of  the  act  entitled  "An  act  to  amend  an  act  entitled  'An  act 
relative  to  the  city  of  Detroit,'  approved  June  29,  1832,"  which 
provides  "  that  when  any  street,  lane,  alley,  side  walk,  high- 
way, water  course  or  bridge,  is  proposed  to  be  laid  out,  esta- 
blished, opened,  made  or  altered  by  the  said  common  council 
in  said  city,  due  notice  shall  be  given  to  all  persons  whose  pro- 
perty will  be  affected  thereby,  and  a  jury  shall  be  drawn,"  &c., 
"  who,  after  being  sworn,  shall  go  on  to  the  premises  on  which 
it  is  proposed  to  lay  out,  establish,  open,  make  or  alter  any 
street,  lane,  alley,  side  walk,  highway,  water  course  or  bridge, 
as  aforesaid,  and  from  an  actual  view  of  the  premises,  shall, 
upon  their  oaths,  determine  whether  the  public  improvement 
or  convenience  require  the  thing  proposed  should  be  done,  and 
if  they  agree  in  the  affirmation,  then  they  shall  proceed  to  as- 
sess the  damages,  if  any,  upon  any  property  affected  thereby, 
respectively,  to  each  owner  or  occupier  thereof,  and  the  said 
damages  shall  be  paid  before  such  improvement  or  alteration 
shall  be  made,  and  within  one  month  after  the  verdict,  which 
shall  be  returned  to,  and  recorded  in  the  mayor's  court  shall 
have  been  rendered,"  &c. 

The  other  sections  of  the  acts  relative  to  the  city  of  De- 
troit, referred  to,  have  no  application  to  the  present  case. 
The  corporation  of  the  city  of  Detroit  have  no  power,  except 
that  which  is  derived  from  the  act  incorporating  the  same,  or 
the  acts  specially  relating  thereto.  (.S'ee  the  People  vs.  the  cor- 
poration of  Albany,  11  Wend.,  544;  Oakley  \s.  the  Trustees 
of  Williamsbu7'g  and  Monroe,  6  Paige  Rep.,  262.) 

Does  the  statute  above  referred  to,  authorize  the  corporation 
of  the  city  of  Detroit,  by  a  vote  or  lease,  to  make  a  permanent 
appropriation  of  a  part  of  one  of  the  streets  of  the  city  for 
the  purpose  of  erecting  a  large  and  permanent  building,  and 
to  the  great  injury  of  individuals  1  Is  it  such  an  alteration  or 
charge  of  the  public  street  as  is  contemplated  by  the  act  ?  The 


CASES  IN  CHANCERY.  87 

corporation  have  not  pretended  to  follow  the  forms  of  law,  ^''^larcuu. 
It  is  so  alledged,  and  their  acts  show  it  to  be  so.     The  lease    cooper 
is  carefully  guarded.     It  says:  "the  common  council  so  far  as     Aiucn. 
they  have  power  and  authority,  under  the  city  charter  and 
amendments  thereto,  and  without  the  intervention  of  a  jury,  to 
assess  private  damages,  and  in  this  manner  so  to  do,  do  hereby 
lease  to  the  people  of  the  state  of  Michigan,"  «fec.     This  lease 
purports  to  have  been  executed  by  virtue  of  a  resolution  of  a 
public  meeting  of  the  freemen  of  the  city  of  Detroit.     But 
this  cannot  vary  the  case;  a  portion,  or  even  a  majority  of  the 
citizens  cannot  legislate  upon  the  rights  of  others  in  this  way. 
It  is  competent  for  individuals  to  stipulate  as  to  their  own 
rights  or  their  own  property,  but  they  cannot  in  this  way,  in- 
terfere with  the  rights  or  property  of  others. 

The  hasty  conclusions  of  a  public  meeting,  regulated  by  no 
forms  or  rules  of  proceeding  would  be  substituted  for  the  safe 
guards  of  our  constitution  and  laws.     It  would  be  deserting 
at  once  the  learning  and  the  labors  of  the  statesman,  and  law- 
givers who  have  endeavored  to  define  and  protect  the  rights 
of  property  among  other  rights,  and  submitting  all  to  the  pas- 
sions or  interests  which  should  prevail  at  the  moment.     If  it  is 
competent  to  lease  a  street  in  this  manner  to  be  occupied  for  this 
purpose,  it  would  be  for  any  other  purpose;  and  whoever  should 
happen  to  be  the  individual  whose  dwelling  was  approached 
in  this  manner,  would  be  fully  sensible  of  the  danger  and 
inconvenience  of  such  an  exercise  of  power.     It  is  not  in  the 
power  of  the  city  authorities,  at  all  events,  under  the  existing 
laws,  to  make  such  a  grant  to  the  injury  of  any  individual;  and 
the  complainants  may  properly  treat  this  proceeding,  as  far  as 
it  interferes  with  their  rights,  as  void,  and  as  conferring  no  au- 
thority upon  the  commissioners  of  internal  improvement  to 
erect  the  building  complained  of,  to  their  injury.     But  it  is 
insisted  that  if  it  should  be  found  that  the  common  council  ex- 
ceeded their  powers  in  granting  the  lease  in  question;  still  the 
commissioners  of  internal  improvement  have  full  authority  to 
do  the  acts  complained  of  by  the  bill. 

This  presents  a  dilllcult  and  important  question. 


88  CASES  IN  CHANCERY. 

Firat circuit,  gy  [\^q  thirteenth  section  of  the  act  for  the  regulation  of 
Cooper  internal  improvement,  &c,,  {Session  Laws  of  1837, page  196,) 
Aiden.  the  board  of  internal  improvement  are  authorized  and  required 
to  establish  the  rates  of  toll,  &c.,  and  "  to  erect  all  such  toll 
houses,  weighing  scales,  offices,  and  other  edifices;  and  also  to 
purchase  such  grounds  for  the  convenience  thereof  as  they 
may  think  necessary  for  the  convenience  and  profitable  use  of 
their  canals  or  railroads,"  &c. 

The  15th  section  of  the  same  act,  provides  that  *' the  said 
board  are  hereby  empowered  to  receive  any  cessions  or  grants 
for  the  use  of  the  people  of  this  state,  from  any  person  or  per- 
sons, of  any  lands  through  which  any  line  of  canals  or  railroad 
or  other  public  work,  shall  have  been  located.  Said  board  of 
commissioners,  and  every  acting  commissioner  under  their  di- 
rection, shall  be,  and  they  are  hereby,  vested  with  all  the  privi- 
leges and  powers  necessary  for  the  location,  construction  and 
keeping  in  repair  all  canals,  railroads  and  other  improvements 
of  which  they  may  have  charge;  and  the  said  board,  tJieir 
agents  or  those  with  whom  they  may  contract  for  working  or 
repairing  any  of  said  works  of  internal  impi*ovements,  or  any 
parts  thereof,  may  enter  upon,  use  and  excavate  any  land  which 
may  be  wanted  for  the  site  of  the  same,  or  any  other  purpose 
which  is  necessary  in  the  construction  or  repair  of  any  of  said 
works,"  &c." 

It  is  said,  by  the  counsel  for  the  defendants,  that  these  two 
sections  give  the  commissioners  full  power  and  lawful  autho- 
rity to  do  all  that  is  alledged  in  the  bill,  they  have  done,  or 
contemplate  doing. 

Have  the  legislature,  by  these  general  powers,  authorizing 
and  requiring  the  commissioners  to  erect  toll  houses  and  other 
edifices,  and  to  purchase  the  lands  necessary  for  the  conven- 
ience thereof,  &c.,  authorized  them  m  the  manner  complained 
of  by  the  bill,  to  appropriate  and  occupy  a  public  street  for  a 
permanent  building,  140-feet  long  by  60  feet  wide,  to  the  great 
damage,  as  alledged  in  the  bill,  of  the  complainants  1 

After  the  most  careful  examination,  I  have  been  led  to  the 
conclusion  that  the  legislature  did  not  contemplate  conferring 


CASES  IN  CHANCERY.  89 

this  power  on  the  commissioners,  and  that  no  such  power  is,  by  fu-m circuit. 
the  act,  conferred.  cooper 

In  order  more  fully  to  understand  this  question,  it  may  be      Aiden. 
well  to  refer  to  the  laws  of  the  state  of  New  York  upon  this 
subject,  and  the  construction  which  has  been  given  to  the 
powers  of  the  commissioners  conferred  by  those  laws. 

By  the  16th  section  of  the  revised  laws  of  New  York,  full 
power  is  given  "  to  erect  on,  and  take  possession  of,  and  use  all 
lands,  streams  and  waters,  the  appropriation  of  which  for  the 
use  of  such  canals  and  works,  shall,  in  their  judgment,  be  neces- 
sary." By  the  19th  section  of  the  same  law,  it  is  provided  "  that 
whenever  for  the  purpose  of  constructing  a  canal  or  making 
any  extraordinary  repairs  or  improvements,  it  shall  be  deemed 
necessary  by  the  canal  commissioners  having  charge  of  the 
work,  to  discontinue  or  alter  any  part  of  a  public  road  on  ac- 
count of  its  interference  with  the  proper  location  or  construc- 
tion of  such  work,  he  shall  make  or  direct  to  be  made,  such  dis- 
continuance or  alteration." 

By  the  24th  section  of  the  same  law,  the  board  of  commis- 
sioners are  authorized  to  erect  such  toll  houses,  offices  and 
other  edifices,  and  purchase  such  grounds  for  the  convenience 
thereof,  as  may  be  deemed  necessary  for  the  profitable  use  of 
the  canals,"  &c. 

It  would  seem,  then,  that  the  legislature  of  the  state  of  New 
York,  only  contemplated  the  discontinuance  or  alteration  of 
any  public  road  in  case  of  its  interference  with  the  proper  lo- 
cation or  construction  of  the  canal,  repairs  or  improvements, 
and  deemed  it  necessary  to  authorize  it,  by  special  authority, 
so  to  do.  The  general  powers  given  to  the  commissioners  in 
this  act,  are  substantially  the  same  as  the  powers  conferred 
upon  the  commissioners  of  our  state  by  the  act  above  referred 
to.  For  the  pui'pose  of  offices  or  edifices,  I  am  inclined  to  be- 
lieve that  the  laws  of  New  York  contemplate  the  acquisition 
of  lands  by  purchase  or  grant,  only.  It  certainly  does  not 
contemplate  occupying  a  highway,  in  a  case  like  the  one  now 
before  this  court;  but  only  in  cases  where  the  highway  shall 
interfere  with  the  public  works. 
Vol.  I.  12 


Cooper 

vs. 
Alden. 


90  CASES  IN  CHANCERY. 

Firstcircuit.  By  the  13th  section  of  the  act  of  this  state,  before  referred  to, 
the  commissioners  are  authorized  to  construct  all  houses  and  ne- 
cessary edifices,  &c.,  and  to  purchase  lands  for  the  convenience 
thereof,  &c. ;  and  it  is  urged  that  by  the  general  powers  contained 
in  the  15th  section  of  the  same  act,  it  is  competent  for  the  com- 
missioners to  appropriate  a  part  of  one  of  the  public  streets  for 
the  purpose  of  erecting  thereon  the  proposed  edifice,  and  may 
extend  the  railroad  some  twenty  rods,  as  appears  from  the  plat 
exhibited,  from  its  present  termination,  and  directly  away 
from  the  route,  and  not  as  a  connecting  link  between  its  points 
of  termination.  Can  it  be  fairly  inferred  from  the  act,  that  it 
was  contemplated  to  authorize  the  occupation  and  obstruction 
of  highways  for  public  buildings,  in  this  way  1 

I  cannot  view  the  powers  conferred  by  the  15th  section  in 
any  other  light  than  as  applying  to  cases  where  it  became  ne- 
ctssM-y  to  appropriate  property,  and  interfere  with  private 
rights,  in  carrying  out  the  great  objects  of  the  law  to  connect 
the  two  points  of  termination  by  a  continuous  railway,  and 
that  the  legislature  did  not  contemplate  or  intend  to  confer  the 
power  to  construct  lateral  ways  to  the  distance  here  contem- 
plated, and' there  appropriate  a  public  highway  for  the  purpose 
of  a  large  permanent  building  for  car  houses  and  offices. 

The  strongest  case  to  be  found  in  support  of  the  exercise 
of  such  broad  powers,  is  the  case  of  Rogers  vs.  Bradshaw, 
20  Johns.  Rep.,  735.  In  this  case,  where  the  route  of  the  ca- 
nal interfered  with  a  turnpike  road,  the  supreme  court  held 
that  the  commissioners  were  not  justified  in  placing  the  road 
on  adjoining  lands,  although  it  was  proved  in  the  cause  that 
the  one  or  the  other  must  yiefd.  On  appeal  to  the  court  of 
errors,  it  was  held  that  the  general  authority  to  discontinue  a 
public  highway  included  a  turnpike;  and,  also,  that  under  their 
general  powers,  it  was  competent  for  them  to  make  this  diver- 
sion of  the  turnpike  from  the  necessity  of  the  case,  and  that 
the  legislature  must  have  intended  to  confer  this  power,  which 
was  necessary  to  carry  fheir  general  powers  into  effect.  The 
court  say:  "the  turnpike  road  was  unavoidably  encroached  up- 
on by  the  canal.     Another  road   was  indispensable  before  the 


Cooper 

vs. 
Alden. 


CASES  IN  CHANCERY.  01 

canal  was  commenced,  and  the  land  taken  was  necessary  for  nrstcircuit. 

the  road;  and  furtiier,  it  is  very  certain  the  improvement  of' 

the  canal  at  this  place  could  not  be  prosecuted  without  the     IH! 

road." 

Is  it  to  be  inferred  from  the  reasoning  in  the  above  cited 
case,  that  the  general  provisions  of  our  statute  above  cited, 
reach  a  case  like  the  present?  Here  the  proposed  erections 
are  manifestly  not  absolutely  necessary  to  carry  into  effect  the 
general  powers  of  the  board  of  commissioners,  but  the  road  is 
extended  to  a  distance  from  the  line  of  the  railroad,  and  the 
public  street  in  front  of  the  dwellings  of  the  complainants  per- 
manently appropriated. 

Would  the  court,  in  the  case  above  cited,  have  construed 
this  as  coming  within  the  meaning  of  the  statute?  It  is  be- 
lieved not. 

But  it  is  said  the  discretion  is  vested  in  the  board  of  commis- 
sioners, and  that  no  other  tribunal  should  interfere.  This  is 
probably  the  correct  view  of  the  exercise  of  the  powers  clear- 
ly given  them  by  law,  and  the  exercise  of  which  are  necessa- 
ry to  carry  out  the  objects  contemplated  by  the  act.  But  is 
it  true,  that  by  virtue  of  their  appointment,  they  may  exercise 
unrestrained  power  over  the  property  or  rights  of  others,  and 
that  no  remedy  exists  but  an  appeal  to  the  legislative  power? 
This  would  be  subverting  and  overturning  one  of  the  first  prin- 
ciples of  our  government. 

A  liberal  construction  of  the  powers  the  board  of  commis- 
sioners have  granted  to  them,  and  necessary  for  the  important 
objects  of  their  appointment,  should  be  given;  but  if  those 
powers  are  exceeded,  to  the  injury  of  the  rights  of  individuals, 
the  courts,  of  course,  when  ajipealed  to,  must  hear  and  de- 
cide. 

This  court  has  undoubted  jurisdiction  to  interfere,  by  in- 
junction, where  public  officers  are  proceeding  illegally  or  im- 
properly, under  a  claim  of  right  to  do  any  act  to  the  injury  of 
the  rights  of  others.  (See  Mohawk  and  H.  R.  R.  Co.  vs. 
Artclier,  6  Paige  Rep.,  88;  Oakley  vs.  Trustees  of  Wllliams- 
hurg,ld.,  264;  Gardner  vs.  Ti-ustees  of  the  village  of  JSTeichxirg, 
^  Johns.  Ch.  Rep.,  ]62;   Belknap  \s.  BcThiap,  Id.,  463.) 


92  CASES  IN  CHANCERY. 

Firstcircuit.      The  commissioners  would  not,  perhaps,  be  trespassers  un- 
^'-^^•'■■'^^^  less  thev  acted  in  bad  faith;  but  when  this  court  is  appealed 

Cooper  •  '^^ 

Aiden  ^^>  ^^  protect  the  rights  of  parties,  I  know  of  no  rule  nor  of 
any  reason  that  will  excuse  it  from  adjudicating  upon  the  law 
and  the  rights  of  these  parties,  as  it  would  be  compelled  to  do 
in  every  other  case. 

This,  then,  being  the  view  entertained  by  the  court,  the 
question  recurs,  have  the  powers,  attempted  to  be  exercised 
by  the  board  of  commissioners  been  granted  by  the  legisla- 
ture 1     If  this  extension  from  the  line  of  the  road,  and  the 
car  house  and  offices,  &c.,  proposed  to  be  erected,  are  autho- 
rized by  the  act,  what  is  the  limit  of  the  powers  of  the  com- 
missioners ?     If  it  may  be  extended  twenty  rods;  it  may,  upon 
the  same  principle,  be  extended  one  hundred  rods.     If  the 
street  in  front  of  the  residences  of  these  complainants,  may, 
by  virtue  of  these  general  powers,  be  occupied  for  the  purpo- 
ses here  contemplated,  and  there  is  no  remedy;  I  can  see  no- 
thing to  prevent   the   occupation   of  the  street  in  front  of  the 
residence  of  any  other  individual,  for  a  furnace  for  the  manu- 
facture of  engines,  and   an   other  for  a  shop  for   the  manufac- 
ture of  cars  or  carriages,  for  store  houses  or  for  a  dwelling 
house,  for  the  residence  of  the  receiver  of  tolls.     I  cannot 
well  perceive  where  the  limits  of  this  implied  power  are  to  be 
found.     It  is  a  conclusion  from  which  I  cannot  escape,  that  the 
legislature,  by  the  general  term  of  canals,  railroads  and  other 
improvements,  and  authority  to  occupy  any  lands  wanted  for 
the  site  thereof  or  for  any  other  purpose  necessary  in  the  con- 
struction and  repair  of  any  of  said  works,  did  not  intend  to 
confer  powers  of  the  kind  here  claimed;  but  the  term  ''other 
improvements,"   must  have  reference  to  the  improving   the 
navigation  of  rivers  aiad  the  various  works  of  internal  improve^ 
ment  under  their  chairge. 

That  the  legislature  did  not  contemplate,  after  authorizing 
and  requiring  the  board  to  build  edifices,  &c.,  and  to  purchase 
such  lands  as  were  necessary  for  the  convenience  thereof, 
giving  power  to  occupy  lands  and  highways  without  consent 
or  purchase  in  the  m  anner  here  complained  of;  and  that  lands. 


CASES  IN  CHANCERY.  98 

&c.,  were  only  to  be  taken  against  the  consent  of  the  owners  F»"'Circuif. 
on  the  grounds  and  for  the  reasons  for  wliich  such  powers  are      coopcr 
usually  given,  from  the  necessity  of  the  cas4,'  where  the  taking      Aiden. 
is  necessary  to  carry  into  cflect  the  great  general  objects  in 
view.     Such  has  been  the  course  in  New  York  and  elsewhere, 
so  far  as  I  have  been  able  to  ascertain. 

The  right  of  the  legislature  to  grant  such  powers  of  appro- 
priating lands  or  highways  for  the  erection  of  offices,  edifices 
and  other  public  buildings  of  the  kind  here  contemplated,  it  is 
not  intended  now  to  discuss;  but  if  such  powers  are  granted, 
it  is  but  reasonable  to  presume  it  will  be  definitely  done  as  in 
the  state  of  New  York,  and  as  was  done  by  our  legislature  in 
extending  the  Central  railroad  down  Woodward  avenue,  in 
the  city  of  Detroit,  and  not  by  implication,  and  with  proper 
safe  guards. 

It  has  been  urged  that  the  statute  of  March  20,  1837,   sec- 
tion 2,  required  that  the  surveys  of  the  several  routes  should 
be  first  made;  that  notice  should  then  be  given,  and  after  hear- 
ing those  interested,  the  commissioners  should  then  proceed  to 
establish  such  routes,  and  file  in  the  ofiice  of  the  secretary  of 
state,  nccurate  plans  of  such  surveys  and  locations.     That,  as 
it  is  alledged  in  the  bill,  and  there  being  no  answer,  of  course 
no  denial,  that  the  extension  complained  of,  was  ordered  by  a 
resolution,  merely  to  make  this  extension  according  to  the  terms 
of  the  lease,  and  alledged  to  have  been  done  without  law  or 
right,  and  without  observing  the  mere  forms  of  law;  that  the 
proceeding  is  irregular,  and  the  parties  cannot  show  it  to  have 
been  legally  done  by  reference  to  the  statute  merely,  but  must 
show  affirmatively  and  positively,  by  way  of  answer,  that  they 
have  pursued  its  forms  and  kept  within  the  powers  granted. 

After  the  views  expressed  on  other  points  in  this  case,  it  may 
not  be  very  material  for  the  purposes  of  this  motion  to  decide 
this  question .  But,  as  it  may  be  convenient  as  a  question  of 
practice,  it  may  be  proper  to  express  my  views  upon  this  point. 
This  is  a  motion  to  dissolve  an  injunction  without  answer,  and 
for  want  of  equity  in  the  bill. 

So  far  as  the  statute,  which  is  a  public  law,  goes  to  show 


CASES  IN  CHANCERY. 

First circuii.  ^]^r^i  ^]^q  ^cts  of  the  commissioners,  as  set  out  in  the  bill,  are 
Cooper     within  their  powers,  and  to  be  exercised  in  the  manner  therein 
Arden.      stated,  so  far  it  is  competent  to  show  by  it,  they  are  lawfully 
authorized  to  perform  the  acts  they  are  alledged  to  have  per- 
formed, and  that  the  complainants  have  no  just  cause  of  com- 
plaint, and  that  hence  results  a  want  of  equity  in  the  bill. 

It  has  been  further  said  in  the  argument,  that  the  legisla- 
ture, by  their  act  of  April  6,  1838,  have  themselves  put  a  con- 
struction upon  the  powers  of  the  commissioners,  and  that  fur- 
ther legislation  was  necessary  to  authorize  a  further  extension 
of  the  railroad  from  its  present  termination. 

This  act  provides  that  the  commissioners  are  hereby  authori- 
zed, with  the  consent  of  the  common  council  of  the  city  of 
Detroit,  to  extend  the  tracks  of  the  Central  railroad  from  its 
present  termination  down  Woodward  avenue  to  its  intersection 
with  Atwater  street,  and  thence  each  way  along  said  Atv^^ater 
street  as  far  as  said  commissioners  may  deem  best  for  the  pub- 
lic good,  &c. 

This  may  not  be  of  decisive  consequence  in  the  decision  of 
this  question,  but  it  certainly  may  be  regarded  as  confirmatory 
of  the  views  heretofore  expressed  of  the  proper  construction 
of  the  general  powers  of  the  commissioners.  The  commis- 
sioners themselves,  by  asking  and  obtaining  a  lease  of  the  city, 
and  by  the  uncontradicted  allegations  of  the  bill,  acting  in  pur- 
suance of  it,  and  making  it  the  basis  of  their  proceeding  in 
this  matter,  seem  to  have  taken  the  same  view  of  their  pow- 
ers. 

But  it  is  said  that  whatever  views  may  be  taken  of  the  pow- 
ers under  which  the  commissioners  acted,  still  the  complain- 
ants have  net  made  a  case  of  such  an  interference  with  their 
rights,  as  calls  for  the  interposition  of  this  court  by  injunction. 

It  must  be  remembered  that  the  allegations  contained  in  the 
bill  are  not  denied,  and  that,  for  the  purposes  of  this  argument, 
they  must  be  taken  as  true,  as  admitted. 

In  regard  to  the  injury,  the  bill  alledges,  in  substance,  that 
the  complainants,  and  those  under  whom  they  claim,  have  been 
in  possession  for  more  than  twenty-five  years;  that  the  com- 
plainants have  laid  out  large  sums  of  money  in  erecting  build- 


zs. 
Alden. 


CASES  IN  CHANCERY.  dd 

ings,  and  preparing  residences  for  themselves  and  their  fami-  Firstciicuit. 
lies;  that  the  obstructinfj  said  street  by  buildings  and  perma-  ^^^P''"^^ 

'  C5  •'  D  r  Cooper 

nent  fixtures,  would  render  the  complainants'  premises  uncom- 
fortable, inconvenient  and  unsafe,  in  proportion  as  the  said 
street  should  be  contracted  or  obstructed ;  and  that,  should 
said  avenue  be  permanently  contracted,  their  plans  of  making 
said  premises  a  place  of  residence,  would  be  wholly  defeated, 
and  they  would  be  compelled,  to  their  great  loss  and  damage, 
and  in  violation  of  their  vested  rights,  either  to  suffer  hazard, 
inconvenience,  annoyance,  and  wrong,  or  to  abandon  their  im- 
provements, made  on  said  premises,  and  seek  elsewhere  a  place 

of  residence. 

That  if  said  building  shall  be  erected,  as  contemplated  by 
said  lease,  it  will  greatly  encumber,  block  up  and  obstruct  the 
free  use  of  the  same;  and  will  extend  across  the  entire  front 
of  lot  42,  and  nearly  all  of  the  eastern  half  of  lot  43,.  the  pro- 
perty of  the  complainants,  to  the  great  annoyance  and  damage 
of  the  vested  rights  of  complainants  and  other  proprietors  of 
lots  on  said  avenue.  That  the  board  of  commissioners  have 
directed  said  building  to  be  erected,  &c.,  to  the  great  wrong 
and  injury  of  complainants,  without  pretending  to  provide  any 
compensation  for  the  great  damages]  the  complainants  would 
sustain  thereby,  and  without  pretending  to  pursue  any  of 
the  mere  forms  of  law.  That  defendants,  or  some  of  them, 
have  commenced  breaking  up  the  streets,  &c.,  and  that  they 
fear,  unless  restrained,  they  will  go  on  and  erect  said  building, 
dig  up  and  encumber  said  avenue,  to  the  great  and  irreparable 
loss  and  damage  of  the  vested  rights  of  complainants.  That 
the  street,  as  they  believe,  must  be  elevated  from  one  to  three 
feet,  &c. ;  that  they  will  be  deprived  of  all  passage,  except  at 
the  peril  of  the  lives  and  safety  of  themselves,  families  and 
property,  by  reason  of  the  cars,  engines  and  other  vehicles 
passing  and  re-passing  upon  said  railroad,  and  collected  about 
said  contemplated  depot  j  and  that  said  railroad  and  building 
will  be  a  great  and  intolerable  nuisance  to  the  said  complain- 
ants' said  premises,  and^render  the  same  wholly  unfit  and  un- 
safe as  a  place  of  residence  for  the  complainants  and  their  fami- 


^  CASES  IN  CHANCERY. 

First  Circuit.  lies,  and  that  their  premises  would  be  in  danger  of  fire  from 
^^"^/''^^  engines  passing  and  beinsf  stationed  so  near  them,  &c.,  &c.; 

Cooper  o  r  o  <->  ,,.,,. 

'^'f-  with  Other  allesjations  of  similar  import,  and  to  which  it  is  not 
necessary  further  to  refer.  The  foregoing  are  referred  to, 
merely  to  show  the  character  of  the  averments  in  the  bill,  and 
to  test  the  question  whether  such  a  case  is  made,  which  stand- 
ing uncontradicted,  that  the  court  is  bound  to  interfere. 

It  is  said  that  as  there  is  a  plat  accompanying  the  bill  show- 
ing the  extent  of  the  obstruction  contemplated,  that  this  court 
can,  without  denial  of  the  strong  allegations  of  the  bill,  which 
are  sworn  to  by  the  complainants  in  this  cause,  infer  that  they 
are  mistaken  in  their  views,  and  that  they  do  not  sustain  such 
an  injury  as  they  have  alledged.  This  would  be  going  quite 
too  far.  The  substantial  allegations  of  the  bill  must  be  held  to 
be  true  until  denied.  Is  there,  then,  such  a  case  made  as  ren- 
ders it  the  imperative  duty  of  this  court  to  permit  the  injunc- 
tion allowed  by  the  judge  of  the  supreme  court,  to  stand  until 
an  answer  1 

Of  this,  if  the  most  respectable  authorities  furnish  a  guide, 
and  if  the  views  previously  expressed  in  this  cause,  are  cor- 
rect, there  can  be  very  little  doubt.  In  6  Paige,  264,  Oakley 
vs.  The  trustees  of  Williamsburgh,  where  the  trustees  were  pro- 
ceeding to  dig  down  a  street,  the  chancellor  says:  "if  the  trus- 
tees have  no  such  powers  as  they  have  assumed  to  exercise, 
then  this  appears  to  be  a  very  proper  case  for  the  allowance 
of  an  injunction,  to  restrain  an  illegal  proceeding  by  them,  to 
dig  down  and  alter  the  grading  of  the  street  as  established, 
which,  as  alledged  in  the  bill,  will  be  a  material  injury  to  the 
value  of  the  property  of  these  complainants."  The  cases  cited, 
2  Johnson,  463;  Belknap  vs.  Belknap,  1  Vcsey,  188;  Slush  vs. 
Trustees  of  Morden  college;  Agar  vs.  The  Regents  canal  com., 
Cooper^s  Equity  Rep.,  77,  a7id  6  Paige,  88,  are  also  in  point, 
and  show  that  jurisdiction  in  this  class  of  cases,  has  been  in 
constant  exercise. 

The  case  of  Corning  and  others  vs.  Lowrie,  6  Johii.  Ch.  R., 
440,  is  strictly  analogous.  This  was  a  bill  for  an  injunction  to 
restrain  the  defendant  from  obstructing  Vestry  street,  in  the 


CASES  IN  CHANCERY.  97 

city  of  New  York,  and  averring  that  he  was  building  a  house  Firstcircuit. 
upon  that  street,  to  the  great  injury  of  the  plaintilfs,  as  owners     ^.^^p^^. 
of  lots  on,  and  adjoining,  that  street;  and  that  Vestry  street     ^iden. 
has  been  laid  out,  regulated  and  paved,  for  about  twenty  years. 
The  chancellor  distinguished  this  case  from  that  of  the  Attor- 
ney General  vs.  Tlie  Utica  insurance  co7npuny,  inasmuch  as  here 
was  a  special  grievance  to  the  plaintiffs,  aflccting  the  enjoy- 
ment of  their  property,  and  the  value  of  it.      The  obstruction 
was  not  only  a  common  or  public  nuisance,  but  worked  a  special 
injury  to  the  plaintiffs,  and  upon  these  grounds  the  injunction 
was  granted.     I  am  unable  to  distinguish  this  case  from  the 
one  under  consideration. 

It  results,  then,  that  this  court,  having  jurisdiction  of  the  sub- 
ject matter,  and  being  appealed  to  by  those  who,  as  they  al- 
ledge,  are  suftering  wrong  and  injury,  and  who  have  made  a 
case  coming  clearly  within  the  authority  of  adjudged  cases,  the 
duty  of  this  court  is  imperative;  it  is  one  from  which  it  dare 
not  shrink,  however  much  it  may  regret  that  this  question  has 
arisen. 

It  is  but  due,  and  of  this  the  court  is  fully  conscious,  that 
the  public  officers  should  be  sustained  in  the  ^exercise  of  the 
powers  which  are  granted  them;  but  when  appealed  to,  upon  a 
question  of  individual  rights,  it  can  have  no  other  duty  but  to 
apply  the  law  to  the  case.  It  cannot  be  improper  further  to 
say,  that  in  the  prosecution  of  the  work  here  complained  of,  it 
is  beyond  doubt  that  the  board  of  commissioners  have  acted  in 
the  most  perfect  good  faith. 

A  great  variety  of  other  questions  have  been  raised  and  dis- 
cussed, in  the  course  of  this  laborious  investigation.  They 
have  been  intently  and  carefully  considered,  but  not  being  ma- 
terial in  the  decision  of  this  motion  from  the  conclusion  to  which 
I  have  arrived,  it  is  not  deemed  necessary  to  discuss  them  fur- 
ther in  this  preliminary  stage  of  the  cause. 

The  motion  to  dissolve  the  injunction  must  be  denied. 

Motion  denied. 


Vol.  1.  13 


S8  CASES  IN  CHANCERY. 


Mary  Devaux  vs.  the  Mayor,  &c.,  of  the  city  of  De- 
troit. 

First  Circuit.  "Where  the  complainant  had  been  In  possession  and  occupied  certain  premises  in  the  city 

\^^rv-^_/      of  Detroit  about  thirty  years,  and  had  received  a  deed  from  the  governor  and  judges  of  the 

Devaux  territory  of  Michigan  for  the  same,  in  the  year  lB-21,  and  the  city  corporation  were  proceeding 

"*•  to  open  3  street  through  the  premises,  (under  a  claim  that  the  street  was  there  originaUy 

'''Detrmt?'^      laid  out,)  and  to  remove  the  fences  and  buildings  for  that  purpose,  an  injunction  was  granted 

to  restrain  the  corporation  from  so  doing,  and  the  chancellor  refused  to  dissolve  the  same 

until  the  defendants  should  establish  their  right  at  law. 

Acourt  of_chancery  is  not  the  appropriate  tribunal  for  the  trial  of  tides  to  land. 

This  was  a  motion  to  dissolve  an  injunction. 
The  statement  of  the  case  is  sufficiently  set  forth  in  the 
opinion  of  the  chancellor. 

A.  D.  Frazer  and  J.  A.  Van  Dyke,  in  support  of  the  mo- 
tion. 

The  bill,  in  this  case,  is  brought  to  enjoin  the  defendants  from 
removing  obstructions  and  opening  up  a  part  of  Congress  street 
in  the  city  of  Detroit,  and  the  complainant  claims  title  from 
the  governor  and  judges  of  the  late  territory  of  Michigan. 

The  common  council  deny  that  such  title  was  given,  and 
even  if  it  were,  they  deny  the  authority  of  the  governor  and 
judges  to  give  any  title  to  that  which  had  been  previously  es- 
tablished as  a  street.  When  the  town  of  Detroit  was  laid  out, 
streets  established  and  plan  adopted,  their  powers,  quoad  hoc 
were  extinguished.  (See  act  of  congress  ^' to  provide  for  the 
adjustment  of  titles  to  land  in  the  town  of  Detroit,"  Sfc,  appro- 
ved April '2\,  1806;  Laws  of  Michigan  of  1833,  page  34.) 

A  naked  power,  not  coupled  with  an  interest,  must  be  strict- 
ly pursued  in  form  and  substance;  and  all  acts  done  under  a 
special  authority  not  warrantable  by  it,  are  void.  Douglas' 
R.,  565,  575;  7  Com.  Dig.,  15,  17,  19,  20,  26;  5  Term  R.,  567; 
13  Peter sdorf  458;   1  W.  Bladcstone  R.,  283. 

If  a  man  pleads  an  act  done  pursuant  to  a  power,  he  ought 
to  show,  the  power  strictly  to  be  pursued  in  all  circumstances. 
2  Day  R.,  418. 


CASES  IN  CHANCERY.  99 

An  appointment  when  executed  is  to  be  considered  in  the  Firstcircuit. 
same  light  as  if  it  had  been   inserted  in  the  original  deed,  by     j^^^^^^ 
•which  the  power  of  appointment  was  created.     1  Johns.  R.,  The^c'ityof 
342,  438;  2  Term  R.,  251 ;  7  Johns.  C.  R.,  45,  48;  4  Kent  Com., 
323. 

The  execution  of  powers  shall  have  the  same  construction, 
force  and  effect  in  courts  of  law  which  they  have  in  courts  of 
equity.     2  Burrows,  11,  46;  Douglas  R.,  293. 

D.  Goodwin,  contra, 

1.  The  possession  is  sufficient  to  authorize  and  sustain  a  per- 
petual injunction,  or  until  defendants  shall  have  established  a  ti- 
tle at  law.  Vaiick  vs.  Mayor,  «5'C.,  of  JS'ew  York,  4  J.  C.  R., 
53. 

2.  Although  defendants  claim  the  premises  to  have  been 
part  of  a  street,  yet  they  admit  the  original  grant  to  complain- 
ant's grantor,  and  also  the  subsequent  grant  of  the  ten  feet. 
They  pretend  it  not  to  be  of  the  same  premises.  It  is,  how- 
ever, obviously  intended  to  he  of  the  ten  feet  in  question,  and  so 
admitted,  otherwise  there  would  be  the  absurdity  of  two  dif- 
ferent grants  for  the  same  thing,  and  that,  by  \\\e  govcimor  and 
judges  of  Michigan.  A  court  of  equity  would,  therefore,  obvi- 
ously prevent  waste  and  destruction,  &c,,  until  the  right  is  de- 
termined. Further,  it  would  relieve  against  so  palpable  a  mis- 
take. Further,  the  deeds  which  the  defendants  find  of  record 
to  liOngdon,  may  not  be  the  only  deeds  to  him;  there  may  be 
otliers  under  which  he  held. 

3.  Again,  the  laying  out  of  streets,  &c.,  on  j^aper,  does  not 
determine  the  locality  or  boundary.  This  can  only  be  done  by 
actual  survey,  or  use  for  a  series  of  years,  from  which  an  actu- 
al survey  and  laying  out,  (otherwise  than  on  paper,)  may  be 
presumed.  Here  the  use  has  been  only  to,  and  not  of,  the  pre- 
mises in  question. 

4.  When  a  highway  has  been  laid  out  and  opened,  it  may  be 
abandoned,  and  that  by  non-user,  and  where  there  has  been 
a  non-user  for  several  years,  and  occupation  of  the  ground  by 
the  adjacent  proprietor,  or  a  claimant  for  several  years,  it  is 


100  CASES  IN  CHANCERY. 

First  Circuit.  pj.ggun^ed  to  have  been  abandoned.     The  proprietor^of  land 
""^^^^^  bounding  on  a  street  or  water  course,  is  by  law  deemed  the 
Thedlyof  owner  of  the  soil  to  the  centre  of  the  street  or  of  the  stream,  ad 
filum  aqucH'     3  KenVs  Com.,  432. 

Here  the  premises  have  never  been  used  for  a  street,  but  al- 
ways, (since  they  were  at  all  appropriated,)  possessed  and  oc- 
cupied by  the  complainant  and  her  grantors.  This  makes  the 
case  impregnable  in  law  or  equity,  unless,  indeed,  the  defend- 
ants can,  in  a  proper  court  at  law,  establish  a  legal  title,  not 
barred  by  any  statute  of  limitations. 

5.  The  answer  is  not  sworn  to.  The  answer  of  a  corpora^ 
tion  under  its  seal,  is  not  upon  oath,  nor  received  as  evidence 
on  oath. 

The  Chancellor. — The  bill  states  that  the  complainant  and 
those  under  whom  the  claims,  have  been  in  possession  of  the  lot 
since  1809,  that  it  has  been  inclosed  by  a  fence  since  that  time, 
and  that  valuable  improvements  have  been  made  upon  it,  &c.; 
that  defendants  are  about  proceeding  summarily  and  without 
pursuing  the  forms  of  law,  to  pull  down  the  fences  and  remove 
the  buildings,  &c.;  that  in  addition  to  the  possession,  she  holds 
the  lands  by  deed  emanating  from  the  governor  and  judges  of 
the  late  territory  of  Michigan,  dated  April,  1821. 

The  answer  admits  the  possession,  but  sets  up  thatLongdon, 
the  grantor  of  the  complainant,  held  a  part  of  the  land  under 
a  permission  from  the  governor  and  judges,  and  that  he  took 
possession  of  the  residue  without  authority,  and  that  the  deed 
of  1821  is  uncertain  in  its  description,  and  does  not  include  the 
land  in  controversy,  and  that  by  the  plan  of  the  city,  said  street 
was  laid  out  sixty  instead  of  fifty  feet  wide. 

It  is  an  admitted  fact  that  the  complainant  and  those  under 
whom  she  claims,  have  been  in  possession  and  have  had  this  pro- 
perty inclosed  for  nearly  thirty  years,  and  the  question  is,  shall 
the  defendants,  after  such  a  length  of  possession,  be  permitted 
to  take  forcible  possession,  and  remove  the  fences  and  building, 
without  first  establishing  their  right  by  legal  process? 

It  appears  to  me  but  just,  that  the  complainant,  after  such  a 


CASES  IN  CHANCERY.  101     ^ 

i 
length  of  possession,  should  be  protected  in  the  enjoyment  of  First  Circuit. 

this  property  until  an  adverse  ritrht  be  established.  ^^^^^^^ 

It  is  urged  that  the  governor  and  judges,  being  trustees,  with  xhcdty  of 
defined  powers,  after  having  laid  out  and  established  the  plan,     ^"°"- 
had  no  authority,  either  to  grant  to  any  one  the  right  to  occu- 
py a  part  of  the  street,  or  to  grant  the  deed  of  1821. 

After  ground  had  been  dedicated  and  appropriated  for  a  pub- 
lic street,  and  rights  acquired  with  reference  to  the  plan,  they 
had  no  authority  to  appropriate  it  to  a  different  purpose. 

But  it  appears  in  this  case,  that  the  land  in  question  was  ne- 
ver used  or  appropriated  as  a  street,  and  the  dedication  of  it 
is  attempted  to  be  shown  by  reference  to  the  plat,  and  on  this 
ground  the  court  is  asked  to  dissolve  the  injunction,  without 
any  establishment  of  the  right  in  opposition  to  a  possession  and 
improvement  of  thirty  years. 

■The  complainant  seems  to  have  acquired  a  confirmation  of 
her  claim  by  the  deed  of  1821,  from  the  same  board  which  is 
alledged  to  have  established  the  plan  of  the  city.  It  is  said 
that  this  deed  is  impeifect,  but  it  is  manifest  that  it  contempla- 
ted the  same  premises.  There  arc  cases  where  the  abandon- 
ment of  a  street  may  be  presumed  hy  non-user.  There  having 
been  a  possession  and  improvement  for  so  long  a  period;  the 
land  in  question  having  never  been  used  as  a  street,  it  would 
be  obviously  unjust  to  permit  this  forcible  entry  without  the 
defendants  first  establishing  a  right  at  law.  [See  Varick  vs. 
Corporation  of  J\''ew  York,  4  Johns.  Cli.  Rep.,  53.)  And  this 
court  is  not  the  appropriate  tribunal  for  the  trial  of  titles  to 
land.     Abbott  vs.  Allen,  2  Johns.  Ch.  Rep.,  521. 

The  injunction  must  be  continued  until  the  defendants  esta- 
blish their  right  at  law. 

Motion  denied. 


■'102  "^  CASES  IN  CHANCERY. 


Henry  V.  Disbrow  vs.  De  Garmo  Jones  and  others, 
and  De  Garmo  Jones  vs.  Henry  V.  Disbrow  and 

others. 

First  Circuit.  A  party  seeking  to  set  aside  a  conveyance,  on  the  ground  of  fraud,  must  be  prompt  in  commu- 
nicating it  when  discovered,  and  consistent  in  his  notice  to  tlie  opposite  party,  of  the  use  he 
intends  to  make  of  it. 
Where  the  complainant  had  rested  for  several  months  after  he  had  knowledge  of  the  fraud 
complained  of.  and  unUI  the  condition  of  the  property  had  changed,  before  he  took  any  steps 
to  rescind  the  contract,  this  court  refused  to  interfere,  but  left  the  complainant  to  his  remedy 
at  law. 
Where  J.  sold  and  conveyed  certain  premises  to  H.  and  others,  for  $20,000,  subject  to  the  un- 
expired term  of  W.,  under  a  lease  from  J.  of  the  same  premises,  and  H.  and  others,  executed 
a  mortgage  to  J.,  upon  the  premises,  to  secure  the  purchase  money,  and  it  was  agreed  that 
J.  should  receive  the  rent  from  W.,  so  long  as  W.  remained  in  possession  under  the  lease, 
and  that  J.  should  pny  to  H.  and  others,  the  interest  on  the  820,000,  so  long  as  AV.  remained 
in  possession,  and  the  first  instalment  of  $4,000  became  due  upon  the  mortgage,  and  J.  pro- 
ceeded to  foreclose  the  same,  and  the  bill  was  taken  as  confessed  as  against  the  mortgagors ; 
it  was  held  that  the  amount  due  from  J.  to  H.  and  others,  by  virtue  of  the  agreement  to  pay 
interest,  should  be  deducted  from  the  amount  due  on  the  mortgage,  and  a  reference  was  di- 
rected to  a  master  to  ascertain  the  balance  due  on  the  mortgage.  , 

For  a  general  statement  of  the  facts  in  the  first  of  these 
cases,  see  Disbrow  vs.  Jones  and  others,  ante  48. 

In  the  case  above  referred  to,  Jones  was  proceeding  to  fore- 
close a  mortgage  by  advertisement,  under  the  statute,  and 
Disbrow,  claiming  an  undivided  interest  in  the  mortgaged  pre- 
mises as  purchaser  from  one  of  the  mortgagors,  filed  his  bill 
and  obtained  an  injunction  restraining  Jones  from  foreclosing 
the  mortgage.  On  coming  in  of  the  answers,  the  injunction 
was  dissolved. 

Jones  then  discontinued  the  proceeding  to  foreclose  by  ad- 
vertisement, and  filed  his  bill  December  6,  1837,  to  foreclose 
his  mortgage. 

The  bill  is  in  the  usual  form,  against  the  mortgagors,  and 
states  that  Disbrow,  some  time  after  the  sale  of  the  mortgaged 
premises  by  Jones  to  the  mortgagors,  acquired  by  purchase  of 
the  mortgagors,  or  some  one  of  them,  an  estate  and  interest 
in  an  undivided  part  of  said  premises,  the  same  being  conveyed 
to  him  in  fee  simple;  that  said  Disbrow,  by  such  purchase  and 


CASES  IN  CHANCERY.  103 

conveyance,  claimed  to  be  the  owner  of  the  undivided  three-  ^''"tci/cuit. 
fourth  parts  of  said  premises.  joncs 

The  bill  alledged  that  at  the  time  of  such  purchase  and  con-  Disbrow. 
veyance,  Disbrow  was  fully  informed  of  the  bond  and  mort- 
gage, and  of  Whiting's  lease;  that  he  was  notified  of  the  lease 
by  Thompson,  and  also  had  notice  thereof  from  other  sources, 
and  purchased  and  acquired  the  interest  which  he  held  in  the 
premises,  subject  to  Whiting's  lease;  that  Whiting  was,  at  the 
time  of  the  pm-chase  and  conveyance  to  Disbrow^,  in  the  ac- 
tual possession  and  occupation  of  said  premises,  under  and  by 
virtue  of  the  lease,  and  that  Disbrow  knew  of  the  endorse- 
ment on  the  lease  extending  Whiting's  term  to  February  1, 
1839. 

July  23,  1838,  the  bill  was  taken  pro-confesso  as  to  all  the 
defendants  except  Disbrow,  who  answered.  The  answer  ad- 
mits the  sale  of  the  premises  by  Jones,  the  bond,  mortgage, 
lease  and  agreement;  also,  the  possession,  by  Whiting,  of  the 
premises,  but  denies  that  he,  Disbrow,  knew  the  terms  of  the 
lease,  or  had  any  knowledge  of  the  special  agreement  reciting 
the  extension  of  the  term  to  Whiting,  until  his  purchase,  but 
states  that  after  his  (Disbrow's)  purchase  of  Thompson,  Thomp- 
son drew  from  his  pocket  and  gave  him  that  agreement. 

D.  Goodwin,  for  complainant. 

WooDBRiDGE  and  Backus,  for  defendant  Disbrow. 

TrtE  Chancellor.  The  most  important  points  in  the  first 
of  the  above  cases,  were  decided  upon  the  motion  to  dissolve 
the  injunction.  (*S'ee  Disbroic  vs.  Jones,  ante  48;)  and  it  is 
not  necessary  again  to  examine  and  decide  the  same  points 
"which  were  then  discussed  and  decided. 

Jones  and  Whiting,  each,  had  an  insurable  interest  in  the 
premises;  they  paid  the  premium  on  the  insurance;  they  have 
sustained  loss  to  the  full  amount  of  the  insurance,  and  they 
are  clearly  entitled  to  the  benefit  of  the  policy.  The  agree- 
ment respecting  the  insurance,  was  betw^een  Jones  and  Whit- 
ing; Disbrow  was  not  a  party  to  it;  Jones  is  liable  to  his  ven- 
dees for  the  ."$2,800,  and  this  amount  must  be  deducted  from 


104  CASES  IN  CHANCERY. 

First  Circuit.  ^I^g  gj^^Qyjjt  secured  by  the  mortgage;  but  I  cannot  perceive 
how  Jones  can  be  made  responsible  to  Disbrow  for  the  $2,500, 
when  the  policy  does  not  pass  with  the  title  to  the  premises. 

There  is  another  point  in  this  case  upon  which  I  have  en- 
tertained some  doubt.  It  is  the  alternative  prayer  in  the  bill 
bv  Disbrow  vs.  Jones  and  others,  that  the  contract  between 
Disbrow  and  Thompson  may  be  rescinded  and  the  deeds  and 
conveyances  set  aside  on  the  ground  of  fraud.  If  this  is  done, 
it  must  be  on  the  ground  that  the  complainant  has  not  a  full 
and  adequate  remedy  at  law. 

The  only  particular  in  which  the  remedy  in  this  court 
would  be  more  full  than  at  law  is,  if  the  contract  between  Dis- 
brow and  Thompson,  should  be  set  aside,  this  court  would 
have  the  power  to  order  a  re-conveyance.  It  is  alledged  in 
the  bill  that  a  part  of  the  consideration  paid  by  Disbrow  to 
Thompson,  was  paid  in  lands,  and  upon  a  proper  showing,  it 
would  unquestionably  be  competent  for  this  court  to  order  a 
re-conveyance;  but  it  does  not  appear  that  the  title  to  the 
lands  conveyed  by  Disbrow  to  Thompson,  is  still  in  Thompson, 
and  a  re-conveyance  is  not  specifically  prayed  for  in  the  bill; 
a  specific  sum  was  agreed  upon  by  the  parties,  which  Dis- 
brow was  \o  pay  Thompson  for  his  interest,  a  part  of  which 
was  paid  in  lands  at  a  specified  price.  The  incumbrance  of 
Whiting's  lease,  does  not  affect  the  title  to  the  property  con- 
veyed by  Thompson  to  Disbrow,  but  to  the  present  possession 
only;  and  it  does  not  sufficiently  appear  that  Disbrow  has  not 
an  adequate  remedy  at  law. 

A  party  seeking  to  set  aside  a  conveyance  on  the  ground  of 
fraud,  must  bo  prompt  in  communicating  it  when  discovered, 
and  consistent  in  his  notice  to  the  opposite  party  of  the  use  he 
intends  to  make  of  it.  Boi/ce's  ex'rs.  vs.  Grundy,  3  Peters,  215. 
Such  was  not  the  case  here;  the  complainant  had  notice  of  the 
incumbrance  of  Whiting's  lease  at  the  time,  or  immediately 
after  his  purchase  from  Thompson,  and  he  admits  that  Thomp- 
son handed  him  the  agreement  recognizing  Whiting's  right  to 
occupy  the  premises,  under  his  lease  from  Jones,  until  Feb- 
ruary J,  1839,  at  the  time  or  immediately  after  the  consumma- 


CASES  IN  CHANCERY.  105 

tion  of  the  contract  between  Disbrowand  Thompson.  If  Dis-  Firstcircuit. 
brow  conceived  this  to  be  a  fraud  upon  his  rights,  lie  should  at 
once  have  given  notice  of  his  intention  to  recede  from  the  con- 
tract. But  this  was  not  done.  Disbrow  rested  for  several 
months,  and  until  the  condition  of  the  property  was  changed, 
before  he  took  any  steps  to  rescind  the  contract. 

Under  the  facts  here  presented,  it  would  be  going  further 
than  any  case  I  have  been  able  to  find,  to  rescind  the  con- 
tract between  Disbrow  and  Thompson  and  order  the  deeds  to 
be  cancelled. 

The  complainant  must  be  left  to  his  remedy  at  law,  where, 
so  far  as  I  can  perceive,  that  remedy  is  full  and  adequate. 

The  mortgagee  having  retained  possession  of  the  mortgaged 
premises  by  his  tenant,  would,  perhaps,  exclusive  of  any  agree- 
ment upon  the  subject,  be  liable  to  the  mortgagors  for  the 
rentsj  but  here  was  a  specific  agreement,  as  to  the  rent,  be- 
tw^een  the  mortgagors  and  the  mortgagee.  Jones  was  to  pay 
the  mortgagors  8L400  per  annum,  in  lieu  of  rent.  The  amount 
secured  by  the  mortgage  is  admitted  to  be  unpaid,  and  a  por- 
tion of  it  now  due;  this  mortgage  is  expressly  recognized  in 
the  deed  from  Thompson  to  Disbrow.  The  mortgagors  have 
permitted  the  bill  to  be  taken  as  confessed  against  them,  and 
Jones  is  entitled  to  a  decree  for  the  amount  now  due  upon  the 
mortgage,  deducting  the  amount  due  from  Jones  to  his  mort- 
gagors, by  virtue  of  the  agreement,  and  it  must  be  referred  to 
a  master  to  ascertain  the  amount  so  due. 

The  bill  in  the  case  of  Disbrow  against  Jones  and  others, 
must  be  dismissed. 


Vol.  1.  14 


106  CASES  IN  CHANCERY. 


Bank  Commissioners  vs.  The  Bank  of  Brest. 

First  Circuit.  Wliere  it  appeared  from  the  statements  in  the  bill,  that  a  banli  commissioner  examined  into  tlie 

^^^^v^^-^      affairs  of  the  bank  of  Brest  on  the  second  day  of  August,  1838,  and  the  specie  then  on  hand 

B'k  Com'rs       was  #9,754  92,  and  that  another  examination  of  the  affair?  of  the  bank  was  made  on  the 

Bank  of  eleventh  day  of  the  same  month,  and  it  tlien  had  but  $138  89,  and  there  was  no  correspond- 

Brest.  ent  decrease  of  liabilities ;  and  about  $44,000  of  the  issues  of  the  bank  were  in  the  hands  of 

agents  without  sufficient  sureties ;  and  that  of  the  assets  there  were  $5,000  in  ancurrent 

notes ;  and  that  $25,000  of  post  notes  were  issued  on  the  fourth  day  of  the  same  month  of 

August,  whhout  being  endorsed  by  a  bank  commissioner  ;  and  the  bill  charged  the  bank  to  be 

Insolvent ;  and  the  answer  admitted  the  facts  set  forth  in  the  bill,  but  denied  the  insolvency  ;  it 

was  held  that  the  bank  was  insolvent  within  the  meaning  of  the  law,  and  that  a  proper  case 

was  made  for  the  appointment  of  a  receiver  to  take  charge  of  its  effects. 

A  transfer,  by  way  of  security,  of  a  portion  of  the  effects  of  a  moneyed  corporation,  for  the 
purpose  of  carrying  on  the  concern,  is  within  the  powers  of  the  directors;  and  a  corporation 
which  has  no  particular  mode  pointed  out  for  closing  its  concernSj  may  make  an  assignment 
on  obtaining  the  assent  of  the  stockholders. 

If  a  corporation  suffers  acts  to  be  done  which  destroy  the  end  and  object  for  which  it  was  in- 
stituted, it  is  equivalent  to  a  surrender  of  its  rights. 

The  directors  of  a  moneyed  corporation,  like  that  of  the  bank  of  Brest,  have  no  power  to  make 
an  assignment,  without  bemg  authorized  so  to  do  by  the  stockholders. 

The  dnrectors  are  trustees  of  the  stockholders  for  the  purpose  of  carrying  on  the  business  of 
the  corporation,  and  not  for  the  purpose  or  winding  it  up  and  destroying  its  existence. 

The  statute  prescribes  the  mode  in  which  the  affairs  of  banking  associations,  established  under 
the  general  banking  law  of  this  state,  shall  be  wound  up,  in  case  of  insolvency,  and  this  forms 
a  part  of  the  security  to  the  public,  and  is  one  of  the  conditions  upon  which  they  take  their 
chartered  powers. 

An  assignment  made  by  tlie  dii-ectors  of  the  bank  of  Brest,  to  a  trustee,  for  the  benefit  of  credi- 
tors, with  a  view  to  evade  the  provisions  of  the  statute,  was  held  to  be  against  the  policy  of 
the  law,  and  void. 

This  was  a  motion  for  the  appointment  of  a  receiver. 

The  bill  alledged  that  the  bank  of  Brest  had  become  a  body- 
corporate  and  politic,  under  and  by  virtue  of  the  provisions  of 
an  act  entitled  "An  act  to  organize  and  regulate  banking  asso- 
ciations,"' approved  March  15,  1837;  that  it  commenced  the 
usual  business  of  banking,  on  or  about  the  30th  day  of  Septem- 
ber, 1838,  and  had  continued  to  do  banking  business  up  to  the 
time  of  the  filing  of  the  bill;  that,  January  10th,  1838,  it  be- 
came subject  to  the  provisions  of  an  act  entitled  "An  act  to 
organize  and  regulate  banking  associations,"  approved  Decem- 
ber 30,  1837;  that  Alpiieus  Felch,  one  of  the  bank  commis- 


13rcdl. 


CASES  IN  CHANCERY.  107 

sioncrs,  in  the  performance  of  his  official  duties,  examined  in-  Firstarcuit. 
to  the  affairs  and  condition  of  the  bank,  on  the  second,  and  jj,^^.„„,,„ 
again  on  the  eleventh  days  of  August,  1838;  that  from  such  B„nkof 
examinations,  it  appeared  that  between  the  second  and  eleventh 
days  of  August,  the  specie  of  the  bank  had  been  reduced  from 
the  sum  of  $9,754  92,  which  was  actually  on  hand  on  the  se- 
cond day  of  August,  to  the  sum  of  $138  89,  which  was  all 
that  remained  in  the  bank  on  the  eleventh  day  of  the  same 
month,  and  that  no  correspondent  decrease  of  the  liabilities  of 
the  bank  had  been  made;  that  about  $44,000  of  the  issues  of 
the  bank  were  in  the  hands  of  Lyman  A.  Spalding,  of  Lock- 
port,  state  of  New  York,  and  other  persons,  agents  of  the 
bank,  without  sufficient  security  being  given  therefor;  that  of 
the  assets  of  the  bank  there  were  $5,000  of  uncurrent  notes 
of  the  "  River  Raisin  and  Lake  Erie  railroad  company;"  that 
post  notes  to  the  amount  of  $25,000  were  issued,  August  4, 
1838,  payable  at  the  Phoenix  bank,  of  the  city  of  New  York, 
one  year  from  date,  bearing  an  interest  of  seven  per  cent;  that 
all  of  said  post  notes  were  issued  without  having  been  endorsed 
by  a  bank  commissioner,  in  violation  of  the  forty-first  section  of 
the  "Act  to  amend  an  act  entitled  .'An  act  to  organize  and  re- 
gulate banking  associations,  and  for  other  purposes,'  approved 
December  30,  1837." 

That  said  bank  had  failed  to  comply  with  section  36  of  the 
last  mentioned  act,  in  furnishing  the  securities  to  the  amount 
required. 

The  bill  charged  the  bank  to  be  insolvent,  and  prayed  for 
an  injunction,  and  for  the  appointment  of  a  receiver  to  take 
charge  of  its  property  and  effects;  also,  for  a  decree  to  deprive 
said  bank  of  its  corporate  privileges,  and  a  dissolution  of  the 
corporation. 

The  bill  was  filed  and  injunction  issued  August  15,  1838; 
injunction  and  subpoena  served  on  the  16th  of  the  same  month. 

The  answer  admits  the  facts  as  stated  in  the  bill,  but  denies 
that  the  bank  was  insolvent,  and  insisted  that  its  assets,  if  no 
unexpected  loss  occurred  in  collecting  them,  would  fully  dis- 
charge all  its  liabilities. 


108  CASES  IN  CHANCERY. 

Firstcircuit.  The  answci'  further  stated,  that  from  various  difficulties  and 
disappointments,  and  more  particularly  from  the  impossibility, 
under  the  circumstances  of  the  case,  of  perfecting  its  securities, 
its  president,  directors  and  company  concluded  to  close  its  af- 
fairs, and  on  the  fourteenth  day  of  August,  1838,  passed  the 
following  preamble  and  resolution:  "Whereas,  from  various 
disappointments  in  the  receipt  of  money,  and  from  other  un- 
foreseen and  embarrassing  circumstances,  it  is  impossible  for 
the  bank  of  Brest  to  redeem,  upon  demand,  all  its  notes  and 
bills  in  circulation,  and  to  pay  its  other  debts;  and  whereas, 
unexpected  difficulties  have  arisen  in  perfecting  its  securities 
required  by  law  for  the  above  bank,  and  the  further  transac- 
tion of  its  business  is  exceedingly  inconvenient;  therefore, 
resolved,  that  all  the  choses  in  action,  and  personal  and  real 
estate,  and  all  the  effects  and  assets  whatever  of  said  bank,,  be 
assigned  and  transferred  to  Alexander  D.  Frazer,  Esq.,  of  De- 
troit, and  Theodore  Romcyn,  Esq..  or  either  of  them,  (if  one 
shall  decline,)  in  trust,  for  the  purpose  of  paying  all  the  debts 
of  said  bank,  as  soon  as  may  be,  according  to  the  statute  of 
the  state;  that  a  deed  of  assignment  be  forthwith  prepared  in 
pursuance  of  the  above  resolution,  and  that  the  cashier  affix 
thereto,  the  seal  of  the  bank,  and  that  the  same,  when  so  seal- 
ed by  the  said  cashier,  shall  be  considered  as  the  deed  of  the 
bank." 

That  Theodore  Romeyn  having  declined  the  trust,  the  bank 
did,  on  the  fifteenth  day  of  August,  execute  to  Alexander  D. 
Frazer,  Esq.,  an  assignment  of  all  its  credits  and  effects,  which 
assignment  was  in  pursuance  of  the  foregoing  resolution,  and 
was  executed  and  delivered  prior  to  the  issuing  of  the  injunc- 
tion, and  with  no  knowledge  or  notice  thereof  That  said  trust 
was  accepted  by  said  Frazer,  and  that  he,  by  virtue  of  said  as- 
signment, took  possession  of  all  the  property  and  effects  of 
said  bank,  and  removed  the  same  previous  to  the  service  of 
said  injunction.  That  the  assignment  was  executed  in  good 
faith,  &c. 

P.  MoREv,  attorney  general,  in  support  of  the  motion. 


iii'rs 


CASES  IN  CHANCERY.  100 

1.  The  directors  of  such  a  corporation  as  the  bank  of  Brest,  F'''^i circuit, 
may  assign  property  to  pay  a  debt,  or   for   any   other  lawful  i;,.  ^o 
purpose  wiiich  will  promote  the  objects  contemplated  by  the    umikof 
charter;  but  they  cannot  make  an  assignment  merely  for  the 
purpose  of  closing  its  existence,  as  that  would  be  the  exercise 
of  a  power  not  delegated  by  law,  and  would,  in  cftecl,  accom- 
plish a  surrender  of  their  chartered  rights  to  another  })0wer 
than  that  by  whom  their  privileges  and   franchises  were  be- 
stowed.    See  Session  Laws  of  1838,  jiagc  31,  section  17,  of  the 
"  act  to  amend  the  act  to  organize  and  regulate  banking  asso- 
ciations, and  for  other  purposes;"  where  the   powers  of  di- 
rectors arc  limited  to  such  acts  as  "  appertain  to  the  business 
of  a  banking  association." 

2.  The  ''  act  to  create  a  fund  for  the  benefit  of  the  creditors 
of  certain  moneyed  corporations,"  provides  the  mode  in  which 
all  corporations  subject  thereto,  shall  be  proceeded  against  on 
their  becoming  insolvent,  or  for  any  violation  of  law.  It  is 
made  the  imperative  duty  of  a  bank  commissioner,  immediately 
upon  the  ascertainment  of  any  violation  of  law  or  insolvency, 
to  apply  to  the  court  of  chancery,  upon  bill  or  petition,  for  an 
injunction;  and  it  is  declared  that  the  same  proceedings  shall, 
in  all  respects,  be  had,  as  in  cases  of  application  by  the  attorney 
general.  (Sec  session  laws  of  1835-G,  page  162,  section  18.) 
Section  9,  page  159,  of  the  same  law%  further  provides,  when 
a  corporation  shall  become  insolvent,  and  shall  have  been  pro- 
ceeded against  as  above,  "  it  shall  be  the  duty  of  the  court  of 
ciiancery,  immediately  after  a  final  dividend  shall  have  been 
made,  to  cause  an  order  prescribing  certain  rules  to  be  entered 
in  its  minutes,"  shows  clearly  anticipating  and  intending  that 
Avhat  was  imperatively  enjoined  as  an  official  duty  upon  the 
bank  commissioner,  would  be  performed  in  good  faith,  and  that 
full  force  and  effect  would  be  given  by  the  court  of  chancery, 
to  what  is  thus  required. 

All  of  this,  an  assignment  such  as  is  now  presented,  and  re- 
lied upon  to  defeat  the  motion,  would  prevent.  It  would  ren- 
der the  law  nugatory,  and  place  the  bank  commissioner  in  the 
strange  predicament  of  being  imperatively  required  by  statute 


110  CASES  IN  CHANCERY. 

First  Circuit,  to  perform  an  act  in  the  furtherance  and  promotion  of  the  pub- 
^'l^"'^^  He  interests,  through  the  medium  of  the  court  of  chancery,  and 
^"t-*"'""  vet  left  nowerless  to  enforce  what  was  there  enjoined;  and 

Bank  of       J  r  .         ir         r  j  •     J' 

^"''■"  subject  too  to  be  defeated  by  an  act  itself  a  fraud  upon  indi- 
vidual rights,  and  a  clear  violation  of  the  spirit  and  intention 
of  the  law. 

T.  RoMEYN,  contra. 

I.  The  act  of  21st  June,  1837,  entitled  "  An  act  to  provide 
for  proceedings  in  chancery  against  corporations,  and  for  other 
purposes,"  does  not  render  it  imperative  upon  the  chancellor  to 
issue  an  injunction  and  appoint  a  receiver. 

1.  The  words  of  the  statute  are,  that  in  certain  specified 
cases  the  chancellor  ?nay  grant  an  injunction  and  may  appoint 
a  receiver.     These  words  imply  a  discretionary  power. 

2.  This  statute,  so  far  as  it  alters  the  common  law,  should 
be  strictly  construed.     1  Ke^ifs  Com.,  433. 

3.  The  bestowal  of  jurisdiction  upon  the  chancery  is  an  in- 
fringing upon  the  common  law,  for  by  it  the  control  of  corpo- 

'  rations  was  intrusted  to  courts  of  law,  and  chancery  could  not 

interfere.     2  John.  Ch.  Rep.,  371;  Id.,  389;  Hopk.  R.,  354. 

4.  Again.  The  granting  of  an  injunction  is  always  discre- 
tionary. 2  John.  Ch.  Rep.,  202,  379.  So  is  the  appointment 
of  a  receiver.     1  John.  Ch.  Rep.,  57. 

11.  The  present  case  does  not  require  the  appointment  of  a 

receiver. 

1.  The  bank  has  made  an  assignment  of  all  its  effects. 

2.  The  act  of  assignment  is  legal. 

First.  It  will  not  be  pretended  but  that  the  bank  might  close 
its  affairs  when  it  pleased,  by  a  surrender  of  its  franchises. 
This  is  incident  to  every  corporation.  1  Blk.  Com.,  485.  An 
assignment  is  a  mutual  surrender.      19  J.  R.,  456;  6    Cow., 

220. 

Second.  It  had  a  right  to  make  such  surrender,  or  close  its 
aflairs  in  this  particular  way.  4  Mass.  Rep.,  293;  2  Kent, 
"ITl;  1  Blh,  475;  6  Cow.,  219;  3  Wend.,  1. 


rs. 

I3nnk  of 

Brest. 


CASES  IN  CHANCERY.  Ill 

Third.  This  particular  assignment  is  valid  in  all  its  provi-  Firstcircuiu 
sions.     If  any  are  legal,  court  will  not  interfere.     5  Paise,  318.  '"'^'Y"^^ 

3.  While  this  assignment  subsists,  the  court  may  not  re- 
move trustee  unless  under  special  circumstances  of  irresponsi- 
bility, neglect  or  abuse  of  trust,  &c.,  which  are  not  here  pre- 
tended to  exist.  G  Johns.  Ch.  Rejj.,  161;  Hopk.  Rep.,  429;  1 
Paige,  17;  2  Paige,  438. 

4.  While  the  assignment  remains  in  force,  and  the  trustee 
acts  under  it,  there  is  no  duty  for  a  receiver  to  perfom. 

First,  The  assignee  of  the  bank  has  already  in  his  posses- 
sion and  control  all  the  property  which  would  vest  in  the  re- 
ceiver, by  the  fifth  section  of  the  act  under  which  the  court 
exercises  jurisdiction. 

Second,  The  securities  which  have  been  given  under  the 
sixth  section  of  the  act  amending  the  general  banking  law, 
are  given  to  the  auditor  general,  for  the  use  of  the  state,  and 
cannot  be  transferred  to  the  receiver. 

The  Chancellor.  From  the  facts  which  appear  in  the 
bill  and  answer,  in  this  case,  there  can  be  no  doubt  that  the 
bank  of  Brest  is  insolvent  within  the  meaning  of  the  law,  and 
that  a  proper  case  is  made  for  the  appointment  of  a  receiver  to 
take  charge  of  its  effects. 

The  question  as  to  the  validity  of  the  assignment,  is  not  re- 
gularly before  the  court;  the  assignee  not  being  a  party,  but 
both  parties  and  the  assignee  are  anxious  to  obtain  an  expres- 
sion of  opinion  upon  this  point. 

The  assignment  set  up  in  the  answer,  is  an  assignment  by 
the  directors  of  all  the  estate,  real  and  personal,  and  assets 
and  effects  of  the  bank,  to  a  trustee.  A  transfer  by  way  of 
security  of  a  portion  of  its  eflects  for  the  purpose  of  carrying 
on  the  concern  is  within  the  power  of  the  directors;  and  a 
corporation  which  has  no  particular  mode  pointed  out  for  clo- 
sing its  concerns,  may  make  an  assignment  on  obtaining  the  as- 
sent of  the  stockholders.  If  this  assignment  is  valid,  it  is  no 
doubt  a  surrender  of  the  charter;  for  if  a  corporation  suffers 
acts  to  be  done  which  destroy  the  end  and  object  for  which  it 


112  CASES  IN  CHANCERY. 

Firstcircuit.  was  instituted,  it   is   equivalent   to  a  surrender  of  its   rights. 
'^^^>r^-^  Slee  vs.  Bloom,  19  Johns.  Rep.,  456;  the  People  vs.  the  Bank  of 

State  ■' 

*»•        Hudson,  6  Cowen  Rep.,  219. 

Bank  of  '  -'     '  ... 

Brest.  The  directors  in  making  the  assignment  in  question,  without 

authority  from  the  stockholders  have  exceeded  their  powers.^j 

They  are  made  trustees  of  the  stockholders,  for  the  purpose 
of  carrying  on  the  business  of  the  corporation,  andnotfor  the 
purpose  of  winding  it  up  and  destroying  its  existence.  Jlngel 
and  Jlmcs  on  Corp.,  507;  3  IJess.,  557. 

The  statute  prescribes  the  manner  in  which  the  affairs  of 
this  class  of  corporations  shall  be  wound  up  in  case  of  insol- 
vency. This  forms  a  part  of  the  security  to  the  public,  and  is 
one  of  the  conditions  upon  which  they  take  their  chartered 
powers.  An  assignment  made  manifestly  with  a  view  to  evade 
the  provisions  of  the  statute,  as  this  seems  to  have  been,  is 
against  the  policy  of  the  law,  and  cannot  be  sustained. 

Motion  granted. 


CASES  IN  CHANCERY.  113 


NoYES  W.  Wadsworth  vs.  JokSeph  Loranger. 

That  a  deed,  absolute  in  its  terms,  may  be  proved  liy  parole  to  li:ive  been  intended  by  tlie  par-  First  Circuit. 
lies  to  operate  only  as  a  morlgage,  cjinnot  admit  of  a  doubt.  V^P'^^-"^^ 

Where  L.  obtained  from  B.  a  loan  of  ^150,  for  one  year,  and  for  security  gave  an  absolute    Wadsworth 
deed  of  certain  premises,  and  B.  soon  afier  abscondeil  and  L.  died,  and  llie  premises  were  sold      Loraneer 
by  L.'s  administrator  to  \V.,  subject  to  the  incumbrance,  and  J.  afterwards,  with  a  full  know- 
ledge of  all  the  facts,  procured  a  deed  from  B.    It  was  held  that  the  deed  from  L.  to  B., 
though  absolute  on  its  face,  was  only  valid  as  a  morlgage,  and  that  J.  having  purchased  of  B. 
with  notice  of  the  facts,  could  take  no  greater  interest  than  B.  had  in  the  premises,  and  that 
W.  was  entitled  10  redeem  on  payment  of  tlic  amount  due  on  the  mortgage. 

This  was  a  bill  to  redeem  from  the  defendant,  a  tract  of  land 
conveyed  by  Antoine  Laselle  to  Thomas  Bell,  as  a  security 
for  #150  loaned,  and  interest,  September  20,  1829,  by  a  deed 
absolute  on  the  face,  but  by  agreement  at  the  time,  merely  a 
mortgage  for  the  security  for  the  money,  $150  and  interest, 
payable  in  one  year. 

The  bill  sets  forth  the  agi-eement  as  above  stated,    and  the 
deed  of  that  date,  September  20,  1829,  under  the  agreement; 
that  Bell,  when  the  money  became  due,  had  left  the  country, 
and  it  was  not  known  where  he  was  or  could  be  found;  that 
I^aselle  wAs  then  ready  and  desired  to  pay  the  money  and  in- 
terest; that  Laselle  died  about  January  1,  1832,  and  Wolcott 
Lawrence  was  appointed  his  administrator;  that  about  Decem- 
ber 3,  1832,  he.  was  empowered  to  sell  the  real  estate  of  La- 
selle to  pay  debts;  the'premises  in  question  were  sold  to  com- 
plainant for  $2,129  90,  paid  by  him,  and  January  7, 1833,  a  deed 
was  duly  executed  to   him;  that  the  premises  were  sold  sub- 
ject to  the  mortgage,  and  comj)lainant  has  been  ever  ready  to 
pay  the  amount  due;  that  Loranger,   the  defendant,  with  full 
knowledge  of  the  nature  of  the  conveyance  to  Bell,   and  the 
agreement  with  him,  obtained  privately  and  fraudulently  from 
Bell,  a  deed  of  the  premises.     The  bill  further  alledgcs  a  con- 
tinued and  uninterrupted  possession  in  Laselle,  his  representa- 
tives and  the  complainant. 

The  answer  denies  any  kaowledge  of  the  transactions  set 
forth  in  the  bill,  showing  the  deed  toBell  to  have  been  a  mort- 
VoL.  I.  15 


114  CASES  IN  CHANCERY. 

First  Circuit,  gage,  aiid  also  of  the  derivative  title  of  complainant  from  the 
^^^^][^^^^^j  representatives  of  Laselle.     It   admits   the   possession  of  the 
LorMger.  p^'cmiscs  to  havc  been  always  in  Laselle  and  his  representa- 
tives. 

D.  GooDAViN,  for  complainant, 

A  deed  absolute  on  the  face  of  it,  if  made  as  a  security  for 
the  payment  of  money  loaned,  is  but  a  mortgage,  and  this  may 
be  shown  by  parole,  and  once  a  moj  tgage  always  a  mortgage, 
until  foreclosure,  is  the  doctrine  of  courts  of  equity.  4  Kent 
Com.,  142-3,  and  cases  cited  in  note;  2  Barbour  8f  Harrington 
Eq.  Dig.,  258,  2G3;  4  Johns.  Ch.  R.,  167;  6  J.  C.  R.,  417;  1 
Paige  C.  R.,  48,  202,  263;  2  Cowen  R.,  324;  5  Paige  C.  R.,  9. 

A.  D.  Frazer,  defendant. 

The  Chancellor.  The  facts  are  briefly  these:  about  the 
20th  of  September,  1829,  Antoine  Laselle  obtained  from  Tho- 
mas Bell,  a  loan  of  $150  for  one  year,  and  for  security  gave  a 
deed  of  the  premises  in  question.  That  before  the  expiration 
of  the  time.  Bell  absconded,  and  his  residence  has  not  since 
been  known.  That  Laselle  has  since  died;  that  the  property 
was  sold  and  conveyed  to  complainant  by  the  administrator 
of  Laselle,  subject  to  this  incumbrance,  on  the  7th  day  of  Jan- 
uary, 1833.  That  defendant  knew  all  these  facts,  but  yet  af- 
terwards on  the  5th  of  March,  1836,  procured  a  deed  from 
Bell.  Loranger,  the  defendant,  denies  all  knowledge  of  the 
fact  that  the  deed  from  Laselle  to  Bell,  was  a  security  for  a  loan^ 

But  from  the  continued  possession  of  Laselle  and  his  repre- 
sentatives, the  proceedings  in  the  attachment  suit,  which  form 
a  part  of  the  exhibits  in  this  cause,  in  which  Laselle,  in  an- 
swer to  the  attachment,  states  the  facts  under  oath,  and  in 
which  suit  Loranger  was  a  party,  from  the  evidence  of  Wol- 
cott  Lawrence,  v;ho  states  that  he  explained  at  that  time  the 
circumstances  to  the  defendant,  and  from  the  positive  evidence 
of  Warner  Wing,  Esq.,  there  can  be  no  doubt  that  he  was  a 
purchaser  with  notice.  It  was  objected  to  the  testimony  of 
Lawrence,  that  his  evidence  Was  a  professional  secret,  and 
therefore  ought  not  to  be  received.     But  it  is  not  a  communi- 


CASES  IN  CHANCERY.  115 

cation   from   the  client  to  tlie   attorney,  but  information  from  *^'"ici":uiu 
the  attorney  to  the  client,  informing  him  of  the  nature  of  Bell's  wadswonh 
title.     It  was  information   which,  as  an  honast  man,  he  was  Lorangfr. 
bound  to  give,  and  which  he  is  now  not  only  comj)etent  but 
bound  to  disclose.     That  a  deed  absolute  in  its  terms,  may  be 
proved  by  parole  to  have  been  intended  by  the  parties  to  ope- 
rate only  as  a  mortgage,  cannot  admit  of  a  doubt.   {See  St7-ong 
et.  ah,  vs.  Stewart,  4  J.  C.  R.,  167;  James  vs.  Johnson,  4'c.,  6 
J.  C.  R.,  417;    Van.  Burenvs.  Olmstead  etah,  b  Paige,  R.,  9.) 

The  facts  then  being  ascertained,  and  of  these  there  can  be 
but  little  doubt,  it  only  remains  to  apply  the  law  ta  the  case^ 
and  in  this  there  is  little  difficulty. 

I  must,  therefore,  declare  that  this  deed,  though  absolute  on 
its  face,  is  only  valid  as  a  mortgage  for  the  security  of  the 
loan  from  Bell  to  Laselle,  and  that  Loranger  being  a  purchaser 
with  notice,  can  take  no  greater  interest  than  Bell  had  in  the 
premises,  and  that  the  complainant  is  entitled  to  redeem  by  the 
payment  of  the  amount  due,  which  by  the  testimony  of  Law- 
rence and  Durocher,  is  proved  to  have  been  one  hundred  and 
fifty  dollars  at  the  date  of  the  deed. 

As  to  costs,  Loranger  purchased  with  a  knowledge  of  the 
facts;  he  was  wrong  in  refusing  the  money  when  tendered, 
and  by  denying  any  knowledge  of  the  nature  of  Bell's  title 
has  put  the  complainant  to  the  expense  of  proving  his  bill. 
The  complainant  is  therefore  entitled  to  recover  his  costs. 


116 


CASES  IN  CHANCERY. 


Barnum 

vs. 
Bank  of 
Pontiac. 


Hiram  Barnum  vs.  The  Bank  of  Pontiac. 

First  Circuit.  Where  an  application  was  made,  under  the  act  of  June  21,  1837,  for  an  injunction  against  the 
bank  of  Pontiac,  and  the  bill  alledged  merely  a  demand  and  refusal  on  the  part  of  the  bank 
to  pay  its  notes,  the  chancellor  refused  to  grant  ihe  injunction  prayed  for. 

In  the  act  incorporating  the  bank  of  Pontiac,  the  act  of  April  23,  1S33,  is  referred  to,  and,  in  ef- 
fect, made  a  part  of  its  charter.  That  act  gives  the  bank  60  days  within  which  to  redeem  its 
notes;  and  the  further  provision  that,  that  act  shall  not  prevent  the  issuing  of  an  injunction, 
does  not  change  the  law  respecting  the  granting  of  injunctions. 

The  act  of  June  21,  1S37,  which  provides  that  an  injunction  may  be  issued  when  any  banking 
institution  shall  refuse  to  pay  its  debts,  is  not  imperative,  but  leaves  it  in  the  sound  discretion 
of  the  court,  upon  a  proper  case  being  made. 

An  injunction  against  a  bank  goes  to  prevent  all  action  whatever,  and  is  rather  in  the  nature  of 
a  final  injuncUon  which  is  sometimes  granted  at  the  termination  of  a  cause,  than  the  usual 
injunction  to  prevent  some  particular  mischief. 

Except  in  cases  where  the  bill  is  filed  by  a  bank  commissioner,  showing  fraud,  violation  of  the 
charter,  or  insolvency,  courts  of  equity  require  notice  of  application  for  injunction;  and  also 
require  a  case  to  be  made  that  would  auUiorize  the  court  to  wind  up  the  concerns  of  the  bank. 

This  was  an  application  for  an  injunction.  The  facts  of  the 
case  are  sufficiently  stated  in  the  opinion  of  the  chancellor. 

W.  Hale  and  P.  Morey,  in  support  of  the  motion. 

I.  The  charter  of  the  bank  of  Pontiac,  taken  in  connection 
with  the  law  of  1833,  gave  the  court  of  equity  full  jurisdiction 
over  the  bank,  and  authorized  it  to  issue  an  injunction  on  an 
application  like  the  present.  Laws  of  1833,  529;  also  the  laws 
of  the  2d,  and  extra  session  of  the  6th  legis,  council  of  Michi^ 

gan,  134. 

The  legislature,  in  passing  these  acts,  clearly  contemplated 
a  proceeding  like  the  one  now  before  the  court.  They  either 
supposed  there  was  some  law  then  in  existence,  providing  for 
such  an  application  to  chancery,  or  else  by  the  law  of  1833, 
they  specially  authorized  it. 

If  there  was  no  law  of  that  nature  in  force,  the  conclusion 
is  irresistible  that  the  legislature  intended  this  statute  as  intro- 
ductory of  a  new  law.  The  enactment  cannot  pass  for  no- 
thing. If  such  a  proceeding  was  not  intended  by  the  legisla- 
ture, why  do  they  provide  that  the  injunction  shall  be  dissol- 
Ted  upon  payment  of  the  debt  and  20  per  cent  damages,  and 


CASES  IN  CHANCERY.  117 

that  the  bank  shall  be  dissolved  unless  it  pays  such  debt  and  First  circuit, 
damages;  and  also,  that  nothing  in  said  act  contained  shall  pre-  ^•^'^^'""^^ 

'-'  *  Barniini 

vent  an  injunction  being  issued  whenever  any  payment  or  de-    RaJ,kof 
mand  shall  be  refused!  ^""^'"'^• 

The  contrary  supposition  would  show  that  the  legislature 
had,  with  uncommon  prudence,  been  fortifying  the  banks  against 
a  contingency  which  could  never  happen. 

The  bank  received  its  charter,  subject  to  the  provisions  of 
the  act  in  question.  If  any  part  of  the  act  is  obligatory  upon 
the  bank,  the  whole  of  it  must  be. 

It  is  a  rule  of  law,  as  w^ell  as  of  equity,  and  will  not  be  con- 
tradicted, that  "a  statute  ought,  upon  the  whole,  to  be  so  con- 
strued, that,  if  it  can  be  prevented,  no  clause,  sentence,  or 
word,  should  be  superfluous,  void,  or  insignificant."  Dwarris 
on  Stats.,  vol.  2,  658. 

With  the  doctrine  that  the  court  of  equity  was,  by  this  sta- 
lute,  invested  with  jurisdiction  over  the  bank,  this  rule  will  ap- 
ply, not  otherwise. 

It  is  likewise  a  maxim  in  law,  that  "every  statute  made 
against  an  injury,  gives  a  remedy,  either  expressly  or  implied- 
ly."    Id.,  662;  2  Inst.,  55. 

"In  statutes,  incidents  are  always  supplied  by  intendments; 
or,  in  other  words,  whenever  a  power  is  given  by  a  statute, 
every  thing  necessary  to  the  making  of  it  effectual  is  given  by 
implication."     2  Inst.,  306. 

II.  The  ar.t  of  the  21st  of  June,  1837,  gives  to  the  chancel- 
ior,  in  express  terms,  the  power  to  grant  injunctions  against 
any  corporation,  having  banking  powers,  whenever  it  shall  be- 
come insolvent,  or  unable  or  shall  refuse  to  pay  its  debts,  &c., 
such  injunctidn  may  be  issued  on  the  application  of  the  attor- 
ney general  in  behalf  of  the  state,  or  of  any  creditor  or  stock- 
holder of  such  corporation,  &c. 

1st.  The  charter  of  the  bank  and  the  law  of  1833,  are  per- 
fectly consistent  with  this  act.  These  acts  are  to  be  construed 
in  connection  with  each  other.     1  Ke7it  Coin.,  463. 

2d.  It  contemplates  the  issuing  of  an  injunction  on  applied- 


113  CASES  IN  CHANCERY. 

Firsu:;ircuit.  ^[^^  ^f  jjny  bill  holder,  and  in  other  cases,  and  gives  the  au- 
thority to  the  chancellor. 

3d.  The  act  of  June  21,  1837,  being  a  new  law,  its  consti- 
tutionality may  be  questioned.  But  that  position  cannot  be 
maintained.  It  is  not  a  law  impairing  the  obligation  of  con- 
tracts; it  only  prescribes  a  change  in  the  remedy,  or  rather 
gives  the  bill  holder  a  remedy  which  he  had  not  before. 

In  the  case  of  the  Attorney  General  vs.  The  Utica  Insurance 
Compamj,  (2  Johns.  Chan.  Rep.,  371,)  a  prosecution  was  com- 
menced by  the  state,  to  restrain  said  company  from  issuing 
paper  money  when  incorporated  only  as  an  insurance  compa- 
ny, brought  in  January,  1817,  by  virtue  of  a  statute  passed  6th 
April,  1813,  no  quo  way^ranto  had  been  issued. 

By  a  joint  resolution  of  the  legislature,  the  attorney  gene- 
ral was  directed  to  institute  such  legal  proceedings  as  might 
be  necessary  and  proper  for  the  purpose  of  dissolving  the  bank 
of  Niagara.  A  quo  loarranto  was  filed  in  the  supreme  court, 
and  injunction  was  prayed  to  stay  proceedings  of  said  bank 
till  judgment  of  ouster;  and  the  chancellor  said  the  principles 
of  the  Utica  case  would  govern  him. 

Attorney  general  applied  for  injunction,  March  28,  1825. 
Hopk.  Ch.  R.,  354,  362. 

A  new  statute  is  passed  April  21,  1825,  authorizing  the 
chancellor  to  issue  injunction,  either  on  application  of  attor- 
ney general  or  any  creditor,  to  restrain  and  have  receiver  ap- 
pointed, &c.  The  attorney  general  filed  a  bill,  December  13, 
1826,  under  this  law,  of  April  21,  1825.     Hopk.  Ch.  R.,  591. ' 

In  the  case  of  the  State  vs.  The  bank  of  Columbia,  under  the 
act  of  April  21,  1825,  an  injunction  was  granted  by  the  chan- 
cellor exparte,  on  application  of  the  attorney  general,  and  also 
several  creditors  in  New  York.     1  Paige  R.,  511. 

III.  This  is  a  case  where  the  chancellor  should  grant  an  in- 
junction, wliich  is  a  power  to  be  exercised  in  his  sound  discre- 
tion. 

1.  The  statute  gives  the  power,  and  of  course  contemplates 
its  exercise.     1  Kent  Coin.,  462. 

2.  It  is  a  remedial  statute  passed  for  the  public  benefit,  and 


CASES  IN  CHANCERY.  119 

for  the  prevention   of  frauds.      Statutes  of    this   description  First arcmt. 
should  be  construed,  so  as  to  suppress  the  mischief  and  advance  '^'J^^^^l^^l^ 
the  remedy.     1  Bl.  Co7n.,  87.     "  Such  statutes  as  arc  benefi-    Bunk  of 
cial  for  the  people,  shall  be  expounded   largel}^,  and  not  \vith    ^'""""'^• 
restriction.     G  Jacob  Law  Diet.,  123. 

3.  From  the  framing  of  this  act,  it  was  evidently  the  in- 
tention of  the  legislature  to  impose  extraordinary  restraints 
upon  the  banks,  and  give  a  speedy  remedy.  2  Kent.,  314;  3 
BL  Com.,  431.  Both  a  court  of  equity  and  a  court  of  law 
are  equally  bound  and  equally  profess  to  interpret  statutes  ac- 
cording to  the  true  intent  of  the  legislature.  Fonh.  Eq.  B.  1 
Ch.,  1  sec.  3,  note  H.;  1  Chitty  Com.  Eq.  Juris.,  16. 

4.  Because  the  bill  holder  has  not  a  perfect  remedy  at  com- 
mon law  against  the  bank. 

5.  A  case  having  been  made  out  within  the  statute,  the  dis- 
cretion of  the  chancellor  ceases,  and  it  becomes  imperative 
upon  him  to  grant  an  injunction.     1  Paige  R.,  516. 

If  a  statute  says  a  thing  maij  be  done,  which  is  for  the  pub- 
lic benefit,  it  shall  be  construed  that  it  must  be  done.  Dwarris 
on  Stat.,  712. 

Bates  and  Walker,  contra. 

First,  it  does  not  appear  from  the  bill  of  complaint  that  the 
bank  refused  to  pay  the  bills  issued  contrary  to  the  charter. 
[See  ckartcr  of  the  bank,  last  clause;  sec.  9,  laws  1835,  p.  139; 
see  act  relative  to  banking  institutions,  revised  laws,  1833,  p.  529; 
/aM;s  1839,  283,  311.) 

Second.  The  charter  of  the  bank  is  a  contract  within  the 
terms  of  the  constitution  of  the  United  States,  and  having  been 
granted  and  accepted  before  the  act  granting  this  court  juris- 
diction, the  legislature  had  no  power  to  repeal,  impair  or  alter 

the  charter  against  the  consent,  or  without  the  default  of  the 

corporation  judicially  ascertained.     {See  charter  of  the  bank; 

Const.  U.  S.,  art.   1,  sec.  10;  4  Wheat.  U.  S.  Rep.,  518;  4  U. 

S.  Cond.   Rep.,  562,  570,  573,  576;  6    Cranch,  87,  136;  2  Bl. 

Com.,  441,  317;  9   Cranch,  43,  293;   1    Kyd  on    Corp.,  14,  16; 

Powell  on  contracts,  6;  6  Cranch.  87;  2  Kent's  Com.,  245,  246, 

2b\2-;sTerm  Rep.,  540;  2  Johns.  Ch.  R.,  380;  3  Cond.  Rep.,  U. 


120  CASES  IN  CHANCERY. 

pirgtcircuif.  s.,  262;  I  Paige  Chan.  Rep.,  107;  ^ngel  and  Ames  on  corp., 
Barnum  ^03;  2  CasBS  in  Chan.,  165;  2  Fesey,  414;  Ambler,  209;  DicA:. 
Bankof     Rep.,  599;  5  /o/in.    C'/ian.  R.,  380.) 

Third,  The  act  of  1837,  being  inapplicable,  the  connplainant 
must  resort  to  his  rennedy  at  common  law,  and  this  court  at 
common  law,  could  not  hear  this  motion,  unless  insolvency  was 
charged;  3  Term  Rep.,  244;  2  John.  Ch.,  390;  5  Johns.  Ch.  Rep., 
380;  an  individual  could  not  move  in  this  matter;  6  Johns. 
Chan.,  46,  160. 

Fourth,  Granting  the  court  has  the  full  power,  by  the  act 
of  1837,  does  this  bill  make  out  a  case  under  the  act?  The 
power  being  discretionary,  will  the  court,  upon  the  complaint  of 
an  individual,  grant  an  injunction  in  the  first  instance  ?  2  Johns. 
Chan.,  204;  6  John.  Ch.,  160,  48;  2  Johns.,  144;  3  Alhyns,  200; 
2  Vesey,  51;  IP.  Wms.,  445;  Mitford,  115;  Cooper's  Eq.,  149; 
6  John.  Chan.,  20;  1  Cox's  Cases,  102. 

Fifth,  Is  there  sufficient  proof  under  the  statute "?  [See  Hopk. 
R.,  599.) 

Sixth,  The  bill  does  not  alledge  that  the  bank  had  refused 
the  privilege  of  suspension  act  of  1837. 

Seventh,  If  an  injunction  is  granted,  it  will  prejudice  the 
rights  of  other  creditors,  as  they  are  not  parties  to  the  bill. 

The  Chancellor. — This  application  is  founded  entirely 
upon  the  act  of  June  21,  1837.  The  bill  alledged  merely  a 
demand  and  refusal  to  pay.  It  contains  no  allegations  of  any 
impending  mischief,  danger  or  hazard,  of  the  rights  of  the  com- 
plainant. 

It  presents  no  one  of  the  ordinary  features  required  to  au- 
thorize this  summary  interposition,  according  to  the  general 
principles  of  proceedings  in  chancery. 

In  the  act  of  incorporation  of  the  bank  of  Pontiac,  the  act 
of  April  23,  1833,  is  specially  referred  to,  and  in  effect  is  made 
a  part  of  its  charter.  That  act  provides,  if  any  bank  shall  not 
pay  its  notes  on  demand,  the  charter  shall  not,  for  that  cause 
be  dissolved,  and  gives  such  bank  sixty  days  within  which  to 
redeem  its  notes.  It  further  contains  a  provision  that  that  act 
shall  not  prevent  the  issuing  of  an  injunction.     It  may  become 


CASES  IN  CHANCERY.  V2l 

necessarv  to  examine  for  what  causes  an  injunction  could  liave  '•'"■^'•^'""'i 
been  issued  under  that  acl.  i^rnum 

Verv  clearlv,  the  mere  i)rovision  lliat   the  "act  sliould   not     ni.i.kof 

J  •'  ^  '  Poniiae. 

prevent  the  issuing  of  an  injunction,"  does  not  change  the  law 
or  the  practice  of  the  court  in  this  respect. 

It  may,  therefore,  be  premised  that  the  legislature  contempla- 
ted that  a  case  should  be  made  which  would  authorize  the  exer- 
cise, according  to  the  course  and  practice  of  this  court,  of  this 
summary  interposition. 

The  act  of  June  21,  1837,  which  is  relied  upon  in  this  ap- 
plication, provides  that  an  injunction  mtnj  be  issued,  when  any 
banking  institution  shall  refuse  to  pay  its  debts. 

It  has  been  urged  that  the  act  last  mentioned  is  imperative; 
that  whenever  there  is  a  demand  and  refusal  to  pay,  the  injunc- 
tion must  issue  of  course.  To  act  upon  this  construction, 
would  lead  to  results  so  variant  from  the  uniform  course  of 
equity  proceedings,  ihat  the  court  must  pause  before  adopt- 
ing it. 

1.  It  would  open  the  door  to  collusion. 

2.  It  would  almost  invariably  lead  to  unjust  and  inequitable 
results. 

If  the  construction  contended  for  of  the  act  of  1833,  and  the 
act  last  mentioned,  shall  obtain,  that  an  injunction  must  be 
granted  on  demand  and  refusal,  and  that  upon  payment  of  the 
amount  claimed  in  the  bill,  and  twenty  per  cent  in  sixty  days, 
the  injunction  shall  be  dissolved,  the  most  probable  result 
would  be,  that  the  bank  enjoined  struggling  lor  existence,  will 
within  the  limited  period,  redeem  the  amount  claimed  by  the 
bill,  although  by  doing  so  it  would  be  unable  to  pay  the  re- 
maining creditors  of  the  bank;  and  this  under  the  direction  of 
the  court.  But  it  is  slill  bound  by  the  statute  to  become  an 
accessory  in  enforcing  this  unjust  distribution. 

There  are  other  objections  to  which  this  construction  would 
lead.  From  the  statutes  and  from  the  settled  practice,  a  legal 
discretion  in  this  as  in  other  cases,  rrjust  be  exercised.  This 
being  granted,  how  shall  this  be  done,  or  rather  what  rule,  ap- 
plicable alike  to  all  cases,  shall  be  adopted.     In  view  of  the  dif- 

VoL,  I.  16 


122  CASES  IN  CHANCERY. 

First  Circuit,  ficulties  and  consequences  which  have  been  before  alluded  to, 
carnum      I  Know  of  DO  better  rule  than  the  usual  test,  that  where  an  in- 


Pontiae. 


Bimkof  junction  is  asked,  in  the  first  instance,  to  require  that  a  case 
shall  be  made  showing  immediate  danger  or  some  impending 
mischief.  From  this  it  will  follow,  that  the  application  in  this 
case  must  be  denied. 

It  has  been  contended  that  the  act  of  1837,  is  so  far  ex  joost 
facto  in  its  operations;  that  it  must  be  regarded  as  unconstitu- 
tional, and  therefore  of  no  validity  so  far  as  regards  the  banks 
subject  to  the  law  of  April  23,  1833.  After  arriving  at  the 
conclusion  before  stated,  it  may  not,  perhaps,  be  necessary  to 
consider  that  question. 

Without  saying  that  it  is  unconstitutional,  and  I  am  as  yet  una- 
ble to  come  to  that  conclusion,  it  is  for  the  present  sufficient  to 
say,  that  it  would  operate  with  great  severity  upon  the  banks, 
and  with  great  inconvenience  to  the  public,  if  the  act  of  1837,  is 
regarded  as  imperative,  if  an  injunction  must  issue  at  all  events 
when  a  bank  shall  refuse  to  pay  any  one  of  its  notes. 

It  is  stated  by  the;  chancellor,  in  the  case  cited  in  Hopkins 
R.,  591,  that  these  are  rather  in  the  nature  of  the  final  injunc- 
tions that  are  sometimes  granted  at  the  termination  of  a  cause, 
than  the  usual  injunctions  to  prevent  some  particular  mischief. 
An  injunction  against  a  bank  goes  to  prevent  all  action  what- 
ever. It  is,  for  the  time  being,  an  utter  prostration  of  all  its 
powers.  Hence,  except  in  cases  where  the  bill  is  filed  by  a  bank 
commissioner,  showing  fraud,  violation  of  the  charter  or  insol- 
vency, courts  require  notice,  and  proceed  with  caution.  And 
it  seems  to  me  that  it  is  not  too  much  and  is  consistent  with 
the  discretion  which  the  court  is  bound  to  exercise,  to  require 
such  a  case  to  be  made,  as  would  authorize  the  court,  if  it  prove 
true  and  according  to  the  exigency  of  the  case,  to  wind  up  the 
concern,  and  make  an  equal  distribution  of  the  assets  among 
all  the  creditors. 

This  may  be  made  out  by  immediate  pending  insolvency, 
and  therefore  danger  to  all  the  creditors;  or  such  danger  of 
a  misapplication  of  the  funds  belonging  to  the  bank  as  would 


I'onliac. 


CASES  IN  CHANCERY.  1'23 

require  the  interposition  of  the  court  lor  the  safety  of  its  ere-  First  circuit. 

dltOrs.  iSuriium 

The  decision  upon  tlie  other  points  made  in  the  argument,  uJikof 
as  well  as  the  point  last  referred  to,  and  also  upon  what  pre- 
cise state  of  f\\cts  this  court  would  feel  itself  bound  to  proceed 
and  wind  up  this  or  any  other  bank,  will  be  more  appropriate 
when  the  case  shall  have  been  heard  upon  the  presentation  of 
such  facts  before  it. 

Motion  denied. 


124  CASES  IN  CHANCERY. 


Richard  McMurtrie   and    another  vs.  John  Ben- 

JVETTE  and  others. 

Thiril  Cir-    Courts  of  equity  do  not,  as  a  matter  of  course,  decree  specitic"performance  of  contracts,  but 
cuit.  e\ercise  a  discre"ionary  power,  upon  a  view  of  all  the  facts  of  the  case  ;  and  this  discre- 

tion must  not  be  arbitrary  and  capricious,  but  regulated  on  grounds  that  will  render  it  ju- 
dicial. 
The  contract  or  agreement  fought  to  he  enforced,  must  be  mutual,  and  the  lie  reciprocal,  or 
a  court  of  equity,  will  not  enforce  a  performance. 

The  contract,  in  order  to  be  enforced,  must  be  certain  in  all  its  eesentiiil  particulars. 

If  a  party  sets  up  part  performance,  to  take  a  case  out  of  the  statute  of  frauds,  he  must  show 
acts  une(iuivoc;iIlj  referring  lo,  and  resuUing  from  that  agreement,  sflch  as  the  party  would 
not  have  done  unless  on  account  of  that  very  agreement,  and  with  a  direct  view  to  its  per- 
formance; and   the  agreement  set  up  must  appear  lo   be  the  same  with  the  one  partly  per- 

■  formed — there  must  be  no  uncertainty  or  equivocation  in  the  case. 

The  ground  of  the  interference  of  courls  of  equity  to  enforce  specific  performance,  is  not  simply 
that  lliere  is  proof  of  the  existence  of  a  parol  agreement,  bU  that  there  is  fraud  in  resisting 
the  completion  of  an  agreement  partly  performed. 

It  seems  now  to  be  held,  that  the  payment  of  the  iclioh  of  the  purchase  money,  clearly  in  pur- 
suance of  a  definite  and  mutual  parol  agreemei.t  is  sufficient  totaltethc  case  out  of  the  sta- 
tute ;  but  it  has  uniformly  been  held  that  the  payment  of  a  trifling  auio\.nt  of  the  considera- 
tion, is  in  no  case  of  itself  sufficient. 

The  bill  in  this  case  was  filed  to  compel  the  specific  perfor- 
mance of  a  parol  agreement  to  convey  land. 

The  bill  states  that  John  Bennette,  one  of  the  defendants,  in 
a  conversation  had  with  complainants,  in  the  month  of  i\'iay 
or  June,  in  the  year  1834,  verbally  agreed  to  sell  and  convey 
to  the  complainants  a  certain  lot  of  land,  containing  eighty 
acres,  for  the  sum  of  one  hundred  and  fifty  dollars,  a  part  to 
be  paid  in  money,  and  the  remainder  in  a  certain  order  drawn 
upon  a  man  in  the  state  of  New  York;  that  complainants  paid 
Bennette,  at  the  time,  four  dollars;  that  a  deed  was  soon  to 
be  made  for  the  premises;  that  instead  of  reducing  the  agree- 
ment to  writing,  Bennette  gave  the  complainants  the  dupli^;ate 
receipt  for  the  land,  which  he  had  received  at  the  time  he  pur- 
chased the  land  of  the  government,  saying,  at  the  same  time, 
that  that  receipt  was  as  good  as  an  article,  for  he,  Bennette, 
could  not  sell  the  land  without  it;  that  Bennette  put  complain- 
ant in   possession,  and   he  had  made  improvements,  <fec.,  that 


CASES  IN  CHANCERY.  125 

afterwards  Bennclte  made  a  deed  to  comphdnants  of  ilic  pre-  '^^''^'^S'" 
miscs    but  did  not  deliver  it;  that   about  a   week  aflc-rvvards,  ^-*^-'-*fe^ 
Bennettc  sold   and  conveyed   the  land  to  deleiidant,  JuiDcson,        ro. 
throu<'-h  his,  Jameson's.  a;jcnt,  Powell  Grover,  one  of  the  de- 
fendants;  that  Grover  knew  of  the  previous  sale  by  Bennette, 
to   complainants,  when   he  purchased  for  Jameson;  the  com- 
plainants offered  to  perform  the  contract  on  their  part,  and  de- 
manded a  deed. 

The  bill  further  stated  that  Jameson  had  deeded  the  prcmi- 
mises  to  Grover,  and  prayed  adccrcc  for  spec'fic  performan- 
ces, and  also  contained  a  prayer  for  other  relief,  &c. 

The  answer  of  Grover  admits  the  bargain  between  Bennette 
and  complainants,  but  denies  that  the  four  dollars  was  paid 
towards  the  land;  states  that  the  four  dollars  was  borrowed  by 
Bennette,  gnd  that  he  had  offered  to  repay  it;  admits  that 
Jameson  offered  to  purcliase  the  land  of  Bennette,  in  June, 
1834,  in  his  presence,  and  that  Bennette  told  him  that  he  had 
made  a  contract  or  bargain  for  the  lands  with  complainants; 
admits  his  being  Jameson's  agent,  to  purchase  the  land,  in  case 
the  same  should  not  be  conveyed  to  complainants;  states  that 
Bennette  called  on  Grover.  .lune  24,  1834,  and  stated,  that 
complainants  had  not  con)[)liGd  with  their  contract  to  purchase 
the  land,  and  that  Bennette  tlicn  ullcred  to  sell  the  land,  and 
that  he,  Grover,  purchased  it  for  Jameson;  that  he  inquired  of 
complainants  respecting  their  agreement  to  purchase,  and  their 
answer  satisfied  him  that  they  had  abandoned  the  contract; 
admits  the  deed  to  Jameson,  and  its  record,  and  also  the  im- 
provements by  complainants;  admits  th  it  he  purchased  from 
Jameson,  March  4,  183G.  for  S500;  denies  any  knowledge  of 
complainants'  having  any  equitable  title  at  the  time  he  pur- 
chased from  Jameson,  and  claims  the  benefit  of  the  statute  of 
frauds. 

The  cause  was  heard  on  bill,  answer  and  testimony.    . 

J.  W.  Jewett.  solicitor  for  complainants. 
J.  H.  Preston,  for  defendants. 


cult. 


McMuririe 

vs. 

Bennetts. 


126  CASES  IN  CHANCERY. 

ThirdCir-  r^^^  Ghancem.or.  It,  is  iiot.  a  matter  of  course  to  decree 
specific  performance  of  contracts.  It  requires  a  sound  discre- 
tion, upon  a  view  of  all  the  circumstances,  and  this  discre- 
tion must  not  be  arbitrary  and  capricious,  but  must  be  regulated 
upon  grounds  that  will  make  it  judicial.  Seymour  vs.  Dclancy, 
6  Johns.  Ch.  Rep.,  222;  same  case,  on  appeal,  3  Cowen,  505.  - 

The  contract  or  agreement  sought  to  be  enforced,  must  be 
mutual,  and  the  tie  reciprocal,  or  a  court  of  equity  will  not 
enforce  a  performance.  1  Mad.  Ch.,  423;  1  Johns. ^Ch., 
282,  378.  Here  the  contract  rests  entirely  in  parol.  The 
letter  given  in  evidence,  is  too  uncertain  to  form  the  foun- 
dation of  any  proceeding;  it  specifies  no  land,^nor  any  price, 
and  nothing  can  be  drawn  from  it,  as  referring  to  the  land  m 
question. 

The  contract,  in  order  to  be  enforced,  must  be  certain  in 
all  its  essential  particulars.  There  is  none  of  that  certainty 
shown  in  the  contract  or  agreement  here  sought  to  be  enforced, 
which  is  necessary  to  enable  this  court  to  decree  a  specific 
performance. 

If  a  party  sets  up  part  performance,  to  take  a  parol  agree- 
ment out  of  the  statute,  he  must  show  acts  unequivocally  re- 
ferring to,  and  resulting  ixom  that  agreement;  such  as  the 
party  would  not  have  dnoR,  nnlcss  on  account  of  that  very 
agreement,  and  with  a  direct  view  to  its  performance;  and  the 
agreement  set  up  must  appear  to  be  the  same  with  the  one 
partly  performed.  There  must  be  no  equivocation  or  uncer- 
tainty in  the  case. 

The  ground  of  the  interference  of  this  court  is  not  simply 
that  there  is  proof  of  the  existence  of  a  parol  agreement 
but  that  there  is  fraud  in  resisting  the  completion  of  an 
agreement  partly  performed.     Phillips  vs.  Thompson,  1  Johns. 

a  R.  131. 

If  this  case  can  be  sustained  at  all,  it  must  be  on  the  ground 
of  part  performance,  for  there  is  clearly  no  such  written  con- 
tract or  ac:reement  as  can  be  enforced  by  this  court. 

The  question  then  recurs,  was  there  such  a  specific,  definite 
verbal  contract  as  can  be  enforced,  and  has  there  been  such  a 


CASES  IN  CHA^X'ERY.  127 


part  porrormancc,  and  readiness  to   fulfil,  on  the  part  of  the  Thiru  cir- 
complainants,  as  will  take  this  case  out  of  the  operation  of  the  .^"^'-^^^ 
statute  of  frauds,    and   render  it  the  duty  of  this  Court  to  de-  ^J'^-^i<"^"-;« 
cree  a  specific  performance  ?     It  seems  to  me  not.     The  im-    ^•^"'"=«'=- 
provement  I  regard  as  out  of  tiic  question,  so  far  as  that  may 
be  sought  to  make  a  part  of  the  performance  and  fulfilment. 
It  is  pretty  clear,  that  whatever  was   done  in  this  way,  was 
not  done  until   after  the   conveyar.c-;   to  Jame>on,  and  it  was 
only  done  with  a  view  to  its  effect   upon   these  proceedings. 
From  the  testimony  of  Green  and  Sewel,    confirmed  by  the 
other  witnesses,  it  is  to  be  inferred  that  the-re  was  a  parol  con- 
tract for  the  sale  of  the  land  in  question;  but  this,  it  is  equal- 
ly apparent,  must  have  been  conditional;  that  is,   that  the  de- 
fendant, Bennette,  would  c  nvcy  the  lond  u,>on  f:f  ndition  that 
the  complainants  would  pay  to  him  the  purchase  price.     There 
was  no  snch  mutual  undertaking  on  the  part  of  the  complain- 
ants, as  would  have  enabled  Bennette  to  compel  them  to  pay 
the  money   at   any  definite  time.      But   it   must  be   inferred 
that  the  agreement  was  to  convey  the  land  upon  the  return  of 
Bennette  from  Jackson,  if  they  would  then  pay  him  the  consi- 
deration. 

Th-'re  is  some  di  ;crepancy  as  to  the  intention  of  the  pay- 
ment of  the  four  dollars.  But,  I  am  inclined  to  think,  that 
both  parties  intended  at  the  time,  that  this  should  apply  in  part 
payment. 

It  has  been  held,  that  even  full  payment  of  the  purchase 
money,  is  not  sufficient,  of  itself,  to  take  a  case  out  of  the  sta- 
tute.     1  Maddochs'  Ch.,  381;  and  note  {>■). 

But  I  am  inclined  to  think  the  better  ojjinion  now  is,  that 
the  payment  of  the  whole  of  the  purchase  money,  clearly  in 
pursuance  of  a  definite  and  mutual  parol  agreement,  is  sutfi- 
cient  to  take  a  case  out  of  the  statute.  But,  I  believe  it  has 
uniformly  been  held,  that  the  payment  of  a  trifling  amount,  as 
was  the  case  here,  is  not,  of  itself,  suflicient.  Indeed,  if  this 
were  permitted  in  a  case  like  the  present,  it  would  defeat  all 
the  beneficial  objects  of  the  statute.  But  this  application  of 
the  four  dollars  must,  in  the  nature  of  things,  iiave  been  con- 


128  CASES  IN  CHANCERY. 


T:iirdc;r-   linofciit;  that  is,  upon   condition    that    the  complainants,   enti- 

cu:t.  °  .     1       ,       1      1  r         • 

K^-^^-'t^  tlud  themselves  to  a  conveyance  ol   the   hmd,    by    pertorming, 

McMunre  q,^    jj^^.jj.  p^-j,,,^    jjy  ^j-jq   payment. of   the   balance   of  the   pur- 

Ecnneitc.        i  ™,    „    ,, 

chase  money. 

The  ground  on  which  the  Court  acts  at  all,  in  these  cases, 
is  fraud,  in  refusing  to  perf-rm  afler  performance  by  the  olher 
party.  The  allowing  any  other  construction  upon  the  statute 
of  frauds,  would  be  to  make  it  a  guard  and  proteclixsn  to  fraud. 
1  Maddncks  Cli.,  378.  This  is'"the  rule  laid  down  in  the 
books,  and  it  is  the  true  one.  Let  us  apply  it  to  the  case 
before  us.  Here  js  not  only  an  absence  of  all  n[)pearance  of 
fraud,  but  of  all  temptation  to  commit  it.  It  appears  that 
Bennctic  had  waited  for  the  performance  of  com[)lainants,  away 
from  homo  for  a  considerable  titnc;  that  he  had  done  ail  on 
liis  part;  'hat  he  was  ready  to  make  the  compl.iinants  a  title; 
that,  on  the  day  on  wliich  a  con\cyance  was  made  to  Jame- 
son, he  applied  to  one  of  the  complainants,  and  then  stated, 
that  he  had  waited  four  weeks  for  them;  but  that,  if  they 
would  then  fulfil  the  contract,  he  would  not  convey  to  Jame- 
son; and  he  finally  sold  the  land  for  five  dollars  less  than,  ac- 
cording to  the  bill,  he  was  to  liave  received  of  complainants. 

It  is  true  that  the  complainant,  Henry,  replied  that  he  was 
ready  to  fulfill  on  his  part,  but  he  offered  no  [jayment  nor  made 
any  definite  suggestion  as  to  any  payment.  This  was  merely 
keeping  the  word  of  promise  to  ilie  car,  and  after  so  long  a 
delay,  might  have  justly  been  tn-ated  by  the  defendant  Ben- 
nett, as  such  a  failure  to  fulfill,  on  the  part  of  "complainants,  as 
would  absolve  him.  In. the -absence  of  all  fraud  and  all  temp- 
tation to  comnnt  fraud,  I  can  see  no  other  w\ay  of  treating  this 
matter.  What  other  course  was  left '(  It  would  have  been, 
hard,  indeed,  to  hold  him  longer  in  this  state  of  uncertainty;  it 
would  be  more  severe,  alter  the  lands  have  been  conveyed  to  a 
bona  fide  purchaser,  and  expensive  improvements  made  by 
others,  still  to  decree  a  specific  |)erformance. 

I  do  not  perceive  any  ground  to  impute  fraud 'or  unfairness 
to  the  defendant  Grovcr,  in  this  transaction.  He  swears  po- 
sitively it  was   purchased  for  Jantieson  and  with  his  money; 


McMurlrie 

rs 
Denneite. 


CASES  IN  CHANCERY.  129 

that  he  left  the  agency  with  him  because  he  could  not  remain  '^''•'jfij^''- 
so  long  from  home.     Il  appears,  loo,  that  Jameson  owned  ad- 
joining lands.     Grover  manifested  no  great  anxiety  tu  purchase 
but  it  was  placed  on  the  ground  that  he  would  lake  it  lor  Jame- 
son if  the  McMurtries  failed  to  pay.     It  is  true  Grover  sub- 
sequenily  purchased  this  and  the  adjoining  tract  of  land,  but 
at  an  advanced  price.     Judges,  of  late,  have  regretted  that 
the  cases  have  gone  so  far  in  pormitling   part  performance  to 
take  a  case  out  of  the  statute,  and  have  said  that  the  courts 
ought  to  make  a  stand  against  further  encroachments  upon  the 
statute  of  frauds.     In   these  views  I  concur.     Unless  a  stand 
is  made,  all  the  salutary  objects  of  the  statuie  will  be  lost  sight 
of.     Some  other  points  were  made  in  the  argument,  which  are 
not  necessarily  involved,  and  perhaps  I  have  already  gone  far- 
ther than  is  necessary;  as,  after  all,  the  case  turns  principally, 
on  the  entire  absence. of  fraud  on  the  part  of  the  defendants, 
and  the  non-fulfillment  on  the  part  of  the  complainants;  there 
is  such   a  want  of   certainty  and    mutuality  in   this  contract 
that  it  cannot  be  enforced.     The  complainants  have  failed  to 
fulfill  on  their  part.     Decreeing  a  specific  performance  is  an 
exercise  of  the  powers  of  this  court  not  ex  debilo  j.uslicice,  but 
to  be  exercised  upon  a  full  view  of  the  whole  case.     There 
being  an  entiie  absence  of  fraud,  and,  so  far  as  can  be  ascer- 
tained from  the  case,  the  failure  of  the  contract  having  been 
caused  hy  the  non-fulfillment  of  the  complainants  themselves, 
they  have  not  made  such  a  case  as  calls  upon  this  court  to  in- 
terfere and  decree  a  specific  performance,  but  that  the  parties 
should  be  left  to  their  remedy  at  law.     The  bill  must  be  dis- 
missed with  costs. 
Bill  dismissed. 


-V:  \ad 


Vol.  I.  n 


130  CASES  IN  CHANCERY. 


Hyacinth   Bernard    dit    Lajore  vs.    the    heirs  of 
Antoine  Bougard  and  others. 

Firs' Circuit.  Af  er  a  confirmation  of  aclilin  to  land  liy  tlie  hoard  of  Innd  commissioners,  under  the  act  of 
^^^T--^-^^       If'i'J,  and  patanis?iicJ,  if  competent  at;. 11  lor  ihis  c  art  lo  go  l)eliind  llie  patent  to  settle  con- 

BernarJ  flicfing  claims,  it  should  ..nly  be  done  upon  the  clearest  and  most  Irrefragable  proof. 

Boa*arJ.  A  resulting  trust  only  exists  wliere  the  actur.l  payment  of  the  purchase  money  is  clearly  and 
distinctly  proved.    Payment  of  a  part  and  not  the  whole,  will  not  raise  a  resulting  trust. 

The  bill  in  this  case  slated,  that  in  January,  1793,  Hyacinth 
Bernard  dit  Lajore  and  one  Antoine  Bougard  took  possession  of 
and  settled  a  certain  tract  of  land  on  the  north  side  of  the  River 
Raisin,  in  the  county  of  Monroe,  contaimng  five  hundred  and 
sixty  arpents,  being  four  hundred  and  eighty-six  acres;  was 
taken  possession  of  jointly,  aud  for  their  joint  benefit,  and  was 
possessed  and  used  in  common.  While  so  possessed,  they,  at 
their  joint  expense  and  for  their  mutual  benefit,  made  perma- 
nent and  extensive  improvements.  They  continued  the  occu- 
pancy and  improvements  till  March  3,  1807,  and  long  subse- 
quently; and  the  same  was  by  them  invariably  considered 
held,  improved  and  enjoyed  as  their  common  property.  That 
about  the  time  last  aforesaid,  they  came  to  a  resolution  of  ma- 
king a  partition,  and  they  agreed  to  divide  the  land  as  follows, 
viz:  the  easterly  half  to  complainant,  the  other  to  Antoine. 
Ever  after  the  division,  the  easterly  half  was  always  taken  as 
the  separate  property  of  complainant,  and  treated  by  both  as- 
such. 

That  from  the  time  of  said  partition  till  Antoine's  death, 
complainant  occupied  and  enjoyed  the  easterly  half  in  his  own 
right,  exercised  acts  of  ownership  over  it,  and  that  his  title  was 
never  disputed. 

That  complainant  and  Aij'^'ine  beingignorant  and  not  aware 
of  the  course  to  be  taken  t  :,-^b;jin  a  confirmation  of  their  title, 
neglected  to  prefer  their  cjtiiin,  until  1821,  when  some  person 
advised  ihem  to  put  in  their  claim;  that  they  did  so  under  the 
act  of  May  Hth,   1820,  that  they  both  prepared  to  go  to  De- 


CASES  IN  CHAxXCERY.  131 

troit  for  that  purpose,  but  at  the  suggestion  of  some  one,  it  First circuu. 
was  proposed,  to  save  expense,  tlial  the  whole  hinds  should  be  ^T^'^^"^ 
confirmed   to  one,  and   that  that  one   should  convey    to    the   Bou'ard. 
other. 

Accordingly  Antoine  went  to  Detroit,  made  his  claim,  and 
had  it  allowed,  and  it  was  confirmed  to  him  by  congress;  the 
expense  to  be  defrayed  equally.  The  conunissioners  acting  l)y 
virtue  of  the  act  of  February  21st,  1823.  confirmed  the  claim. 
Possession  continued  by  complainant  until  1829,  and  that  he 
often  called  to  see  if  ihepalerU  had  ariived.  Before  patent  was 
received,  Antoine  died. 

That  the  day  previous  to  his  death,  in  1828,  Antoine  called 
his  children,  or  a  part  of  them,  and  informed  them  of  com- 
plainant's right  in  the  land,  and  enjoined  them  to  make  a  deed. 
Congress  confirnied  the  claim  in  1828  or  1829.  When  the 
heirs  were  called  upon  to  make  a  deed,  they  did  not  deny  the 
right  of  the  party,  but  professed  their  willingness  to  make  a 
deed  when  they  should  receive  the  patent. 

That  after  Antoin(;'s  death,  complainant  held  and  enjoyed 
the  land  until  sometime  in  the  year  1829.  when  Antoine,  one 
of  the  heirs,  conceived  the  design  of  djiVauding;  sold  or  agreed 
to  sell  to  H.  Di.sbrow,  ih^  undivided  fifth  part  of  said  entire 
tract  of  land;  that  Disbrow  had  full  previous  knowledge  and 
notice  on  the  5th  April,  1829.  In  the  deed  to  Disbrow,  it  is 
recited  that  the  patent  had  not  anivecJ. 

That  Alexis  Bougard  also  agreed  to  sell  to  Disbrow,  on  the 
28lh  of  May,  1829;  that  Disbrow,  with  full  notice,  received  a 
deed,  also  reciting  that  the  patent  had  not  arrived. 

Therese  Nuvane  and  her  husband,  Alexis  dit  Plat  Nuvane, 
on  the  13th  June,  1830,  also  agreed  to  sell  to  Disbrow,  with 
full  notice. 

Bill  charges  each  of  the  heirs  wit!)  full  knowledge  and  notice, 
before  selling,  or  granting  their  deeds. 

Also,  charges  that  Disbrow  had  full  knowledge  and  notice  at 
the  time  of  contracting,  receiving  deed  or  paying  money,  nnd 
accepted  of  the  deed  with  this  knowledge,  and  stating  that  Dis- 
brow surreptitiously  and  illegally  got  possession  of  the  lands. 


Bernard 

vs. 
Bougard. 


isa  CASES  IN  CHANCERY. 

Firstcircuii.  That  Hyacinth  Bernard,  as  heir,  intending  to  defraud,  and 
having  notice  thereof,  &c..  on  the  29th  February,  1830,  made 
an  agreement  with  Robert  Clark,  for  one-fifth  part  of  the  entire, 
who  made  a  deed  therefore. 

That  Manigue  Mernard  and  her  husband  John  Mune  Mer- 
nard,  with  notice,  sold  to  said  Clark,  their  interest,  on  or  about 
the  4th  February,  1830.     Deed  given. 

Bill  charges  Clark  with  full  notice,  at  the  time  of  both  these 
purchases. 

■  Charges  that  in  1829  or  1830,  ihe  patent  was  issued  either 
to  the  deceased  or  some  one  or  more  of  the  heirs,  but  cannot 
state  the  particulars  of  the  patent,  as  the  heirs  have  it.  Re- 
quires its  production. 

1.  The  defendants  plead  in  bar  the  statute  of  frauds  to  all 
matters,  touching  the  claim  of  the  complainant,  not  in  wri- 
ting; and, 

2.  By  answer  deny  all  knowledge,  belief,  &c.,  of  the  pre- 
tended purchase  from  the  Indians  by  complainants,  and  deny 
the  pretended  joint  occupancy,  improvement,  and  partition; 
deny  all  the  material  allegations  contained  in  the  bill;  and 
Clark  and  Disbrow  deny  notice,  &c.,  before  their  purchase  of 
complainant's  claim.  The  defendants,  in  their  answer,  insist 
that  Antoinc  Bougard,  senior,  alone  purchased  of  the  Indians, 
or  otherwise  took  possession  of  the  whole  premises  in  question, 
in  his  own  right,  and  for  his  excltisive  benefit,  about  the  time 
mentioned  in  the  bill,  and  continued  to  occupy  the  same,  either 
by  himself  or  his  tenants,  up  to  1807,  and  to  the  time  of  his 
death  in  1829;  that  he  claimed  the  same  as  his  own,  and  at 
all  times  denied  the  claims  of  al!  others. 

The  cause  was  heard  on  bill,  answer,  and  testimony. 

A.  D.  Fraser,  solicitor  for  complainant. 

This  bill  is  brought  to  enforce  the  execution  of  a  trust,  to 
■which  the  defendants  have  put  in  a  plea,  setting  up  the  statute 
of  frauds,  and  denying. that  it  was  created  by  writing.  The 
ease  made  by  the  bill  is  that  of  a  trust,  arising  by  implication 


CASES  IN  CHANCERY.  133 

or  construction  of-  law,  and  is   expressly   excepted   from   the  Firs-circuit, 
operation  of  the  statute  relied  on,    by  the   13lh  section,  (laws^'^^^'^'^ 

^  •>  ^  Bernard 

of  1819,  p.  118;)  and  may  be  proved  by  parol,  even  in  op-  j.^^'\^^ 
position  to  the  answer  of  tiic  defendants  denying  the  trust. 
The  statute  was  never  held  to  apply  to  such  a  case.  Wray 
vs.  Steele,  2  Ves.  <^  Bearn's,  388;  Finch  vs.  Finch,  15  Ves.,  45; 
AHorneij  General  vs.  Fowler,  15  Vesey,  90;  Jeremy's  Equity, 
88. 

•  The  complainant's  case  does  not  rest  nor  depend  upon  the 
promise  or  arrangement  between  them,  as  to  the  manner  of 
forfeiting  the  title,  but  rests  upon  the  previous  equity  of  the 
case.  The  promise  all  edged,  is  only  an  additional  ground  of 
equity.  It  is  the  occupation  and  improvement  of  the  property 
by  the  complainant,  that  constitutes  his  equitable  title,  and 
gives  him  a  right  to  confirmation  under  the  several  acts  of 
Congress  on  this  subject.  Hutchins  vs.  Mannington,  1  Vesey, 
3G6;  Boyd  vs.  McLean,  1  Johns.  C.  R.,  582;  2  P.  William's, 
548;  1  Johns.  Cases,  153;  Dcconcher  vs.  Savatier,  3  Johns.  C. 
JR.,  21G;  Strickland  vs.  Jlldridge,  9  Ves.,  518;  Livingston  vs. 
Livingston,  2  Johns.  C.  R.,  539;  Jackson  vs.  Martsdorf,  11 
Johns.  R.,  90. 

If  the  deceased  did  not  intend  to  take  the  deed  as  a  trust, 
and  convey  to  the  complainant,  he  obtained  it  in  fraud,  and,  on 
that  m-ound,  he  is  entitled  to  have  the  trust  carried  into  effect, 
notwithstanding  the  statute.  Roberts  on  fraud,  102;  1  Comyns' 
Dig.,  361,  485;    1  Madd.,  239-240,  299. 

It  is  a  clear  rule,  that  where  A.  purchases  in  the  name  of  B., 
the  former  paying  the  consideration,  B.  is  a  mere  trustee,  not- 
withstanding the  statute  of  frauds.  Jeremy's  Eq.,  85.  So,  if 
an  agent  locate  lands  for  himself,  which  he  ought  to  locate  for 
his  principal,  he  is  in  equity  a  trustee  for  his  principal.  2  Cond. 
Eng.  Ch.  R.,  339.  It  is  equally  well  settled,  that  all  persons 
coming  into  possession  of  trust  property,  with  notice  of  the 
trust,  shall  be  considered  a  trustee,  and  bound,  with  respect  to 
that  special  property,  to  the  execution  of  the  trust.  1  Cond. 
Eng.  Ch.  R.,  309;   1  Johns.  C.  R.,  566. 

H.  T.  Backus,  solicitor  for  defendants. 


134  CASES  IN  CHANCERY. 

Fjrstcircuit.      Thg  defendants  insist  that  the  complainant  is  not  entitled  to 

Bernard      I'Sliei  ; 


vs. 
Bougar.1. 


I.  Because  the  complainant  has  failed  to  make  out  his  case 
as  stated  in  the  bill. 

II.  Were  all  the  averments  in  the  complainant's  bill  true, 
still  he  could  not  have  the  relief  prayed  for,  or  indeed  any  re- 
lief, and  especially  so  under  the  evidence  in  the  case,  because 
neither  party  acquired  any  right  by  Indian  purchases.  The 
title  and  right  of  the  premises  was  in  the  United  States,  by 
right  of  sovereignty,  and  also  of  cession  from  the  several  states. 
The  Indians  had  no  assignable  interest,  a  mere  right  of  per- 
sonal occupancy,  as  has  been  expressly  decided.  Johnson  vs. 
JMcIntosh,  8  Wheat.,  543.  Had  the  Indian  light  been  other- 
wise, the  pretended  purchase  would  be  a  nullity;  for  no  right 
or  title  to  real  estate  could  be  acquired  by  parol  in  the  old 
North-west  territory,  even  j^rior  to  the  statute  of  frauds. 
Lindsley  vs.  Coates  ;  1.  Ohio  Rep.  113.  The  fundamental  or- 
dinance of  1787,  ^rt.  1,  prescribed  the  only  mode  of  transfer- 
ring real  estate,  or  any  interest  in  it.  And  the  rules  of  pro- 
perty are  the  same  in  equity  as  at  law.  Gilbert,  law  of  uses, 
39.  Where  a  deed  is  necessary,  before  the  statute  of  frauds, 
to  pass  a  legal  estate,  a  deed  is  likewise  necessary  to  pass  an 
equitable  estate,  and  the  same  formalities  are  requisite  in  the 
case  of  a  will,  or  other  instrument,  to  pass  an  equitable  estate, 
as  to  pass  a  legal  estate.  Gilbert,  law  uses,  7,  7;  Bac.  Jlbrgt. 
Tit.  uses  and  trusts,  91;  Jldlington  vs.  Can.,  3,  Atk.,  151;  2 
Jltk.  37. 

The  occupation  and  possession  of  either,  or  any  party,  was 
a  wrong,  a  mere  trespass  on  the  property  of  the  United  States; 
they  were  mere  wrong  doers,  and  as  between  those  in  equal 
wrong,  there  is  no  equity,  2  Pow.  on  Cont.,  150-1.  Any  act 
of  either  of  the  parties  touching  the  premises  in  question,  was 
a  mere  usurpation,  and  but  for  the  act  of  congress  of  1807, 
could  by  no  possibility  have  been  the  foundation  of  any  right 
whatever. 

That  act  is  the  foundation  of  all  pretense  of  right  in  any  one. 


CASES  l^  CHANCERY.  135 

Land  laws,  271.     And  the  j-ight  and  title  of  the  defendants  is  Fireicircun. 
in  virtue  of  that  act,  and  the  several  acts  extending;  its  opera-  ^'^^^^"^ 

o  r  Dernard 

tion,  and  confirming   the   proceedings  of  the   commissioners.    BoJ^rd. 
These  acts  made  that,  the   foundation  of  the  right  which  was 
before  a  wrong,  a  mere  naked  trespass  on  the  property  of  the 
United  States. 

This  act  pointed  out  the  mode   by  wiiich  this  mere  wrong 
(by  the  mere  bounty  of  the  government,)  might  be  made  the 
foundation  of  a  claim  of  right,  and  that  right  perfected  into  a 
legal  title  to  the  premises;   but  the  consummation  of  this  claim 
or  incohate  right  in  individual  cases,  depended  on  the  previou 
proof  of  certain  facts,  to  wit:   possession,  occupation  and  im- 
provement from,  or  previous  to  the  year  1798,  up  to  the  third 
of  March,  18t)7.     No  possession  that   did  not  extend  to  the 
third  of  March,  1807,  nor  any  possession,  &c.,  after  that  time, 
could  be  the  foundation  of  any  right  under  the  act  in  question. 
Whoever  did  not,  in  fact,  on  the  third  of  March,  1807,  occupy, 
possess,  &c.,  the  land  claimed,  or  claim   under  some  one  who 
did,  had  no   shadow"  of  right,   either  equitable   or   legal,  and 
could  have  none.     Of  these  facts  the  commissioners  were  the 
judges,  and  by  the  terms  of  the  act  in  question,  they  were  to 
determine  claims  on  an  equitable  and  just  basis.     And  of  the 
existence  of  the  facts  requisite  to  support  the  right  claimed  by 
any   individual,   the   decision   of  the   commissioners   must   be 
deemed  conclusive.      1st.  As  no  right,  equitable  or  legal,  could, 
by  a  possibility  exist,  or  be  perfected    in  any  one  but   by  the 
previous  proof  of  these  facts,  and  by  the  express  teim  of  the 
act,  none  but  the  commissioners  couJd  take   this   proof.      And 
2d.  Because  the  decision  of  the  commissioners  has  been  con- 
firmed by  congress,  the  donors  of  this  mere  gratuity. 

In  the  present  case,  then,  the  commissioners  have  decided 
and  congress  has  confirmed  that  decision,  that  the  land  in  ques- 
tion justly  and  equitably,  in  the  spirit  of  the  act  of  congress, 
belonged  to  Antoine  Bougard,  under,  and  from  w'hom  the  pre- 
sent defendants  claim. 

And  whoever  claims  the  land  in  question,  or  any  part  of  it, 
must  deduce  that  claim  through  him;  not  by  controverting  the 


136  CASES  L\  CHANCERY. 

Firstcircuit.  facts  Oil  which  his,  Bougard's,  claim  and  title  to  the  land  rests, 
'"iT^''^  for  that  would   unsettle  the  claim  itself,  and   leave  it   doubtful 

Bernard 

Bougard.    whcther  it  belongs  to  any  one. 

And  as  to  any  claim  or  right,  not  deduced  from,  and  resting 
on,  not  only  the  validity  of  the  claim, and  right  of  Antoine  Bou- 
gard, but  the  truth  of  the  facts  upon  which  that  claim  was  con- 
firmed, as  required  by  the  act  of  congress,  there  is  no  equity 
about  it.     It  rests  upon  the  mere  fact,  has  the  act  of  congress 
been    complied   with,  in   relation  to   that   claim  1     If  not,  the 
claim  is,  for  all  legal  purposes,  a  void  o»e;  for  in  such  a  mat- 
ter, the  act  of  congress   is  not  only  the  sole  foundation  of  all 
right,  but  itself  provides  the  exclusive  means  of  securing  such 
right.      Wilson  vs.  Mason,  1  Cranch.,  101.     In  other  words,  if 
this  court  can,  as  to  the  facts  on  which  the  claim  itself  rests, 
go  behind  the  decision  of  the  commissioners,  and  the  confirma- 
tion of  congress,  and  if  they  should  there  find  those  facts  un- 
true, and  that  Antoine  Bougard  had  no  right  to  a  part  of  the 
land  in  question,  because  of  him,  the  facts  were  not  true,  that 
gave  the  right  under  the  act  of  congress;  cui  bono?  the  only 
legal  consequence  of  such  a  course,  and  such  results,  would  be 
to  find  that  one  half  of  the  land  in  question  belongs  not  to  the 
complainant,  but  to  the  United  States.     Not  to  the  complain- 
ant, because  he  has  never   complied   with   the  requisitions  of 
the  act  of  congress,  upon  which  all  right,  either  legal  or  equi- 
table, must  depend,  by  presenting  and  proving  his   claim,  as 
that  act  requires.     If  the  United  States,  in  the  distribution  of 
their  mere  gratuities,  have  been  either  wronged  or  deceived, 
they  alone  can  correct  the  evil;  this  court  cannot^  for  the  plain 
reason  that  the  United  States  have  never  authorized  it  to  de- 
cide upon   the   facts  that  entitle  to   that  gratuity;  but  on  the 
contrary,  that  duty  has   been   imposed  on   commissioners  of 
their  own   appointing,  clothed  with   full   power  for  that  pur- 
pose, and  whose  acts  in  the  rhatter  have  been  confirmed.    But 
again,  the  acts  of  congress,  giving  the  right,  and  the  iifieans  of 
consummating  that  right,  have  expired  by  their  own  limitation; 
no  claim  or  proof  of  claim  can  now  be  made.     Should  then, 
this  court  distinctly  find  that  the  facts  necessary  to  sustain  tha 


CASES  IN  CHANCERY.  137 

original  claim  of  Bougard,  never  did  in  tiuth  exist,  (or  which  Firstcircuit. 
is  the  same,  that  they  were  true  in  relation  to  the  complainant,)  ^^P'^^ 
the  claim  of  the  complainant  cannot  be  now  established  or  con-    ^o"'  j. 
firmed  in  this  court,  for  these  reasons:  it  is  obvious  this  court 
can  make  no  decree  whatever,  in  favor  of  the  complainant,  since, 
in  the  construction  of  statutes,  equity  fallows  the  Jaw.  Lessees 
of  Talbot  vs.  Shnpso7i,  Pet.  C.  C.  R.  188.     And  all  the  cases  re- 
ferred to  by  complainant,  in  which  a  court  of  chancery  has  in- 
terposed, and  gone  behind  the  legal  title,  is  where  each  party 
respectively,  in  relation  to  his  own  separate  claim,  has  pur- 
sued all  the  appropriate  steps  pointed  out  by  the  law  for  the 
consummation  of  that  claim,  (or  at  least  has  pretended  so  to 
do,)  as  Bodhj  et  al  vs.  Taylor,  2  Cond.  U.  S.  Rep.,  227;   Tay- 
lor and  Quarks  vs.  Broion,  Id.  235. 

III.   The  complainant  most  clearly  then,  can  found  no  claim 
for  relief  in  controverting  the  facts  on  which  the  existence  of 
the  right  itself  depends,  that  is  the  subject  matter  of  his  claim. 
By  the  facts  in  the  case,  it  is  evident  that  up  to  the  year  1821, 
when  steps  were  first  taken  to  acquire  a  legal  right  to  the 
premises,  even  Bougard  himself  had  no  permanent,  much  less 
exclusive,  right  in  the  premises;  nothing  but  a  mere  possibility 
under  the  act  of  congress,  dependent  on  the  previous  proof  of 
the  requisite  facts  before  the  commissioners.     Up  to  that  time, 
then,  no  ground  of  equitable  jurisdiction  existed.     Both  the 
complainant  and  Bougard  were  on  equal  ground;  neither  had 
the  legal  title,  and  either  might  apply  for  it.     From  this  time, 
at  least  not  before,  all  equities  must  originate,  if  any  exist  in 
the  case,  for  no  equity  can  be  built  upon  a  mere  equity;  an 
equity  can  only  exist  in  relation  to  some  legal  right.     And  so 
is  the  case  made  by  the  complainant,  if  it  be  any  thing,  that 
in  the  year  1821,  a  pretended  stipulation  or  agreement  was 
entered  into  between  him  and  Bougard,  that  for  their  joint  be- 
nefit, the  premises  should  be  claimed  and  the  legal  title  pro- 
cured, in  the  name  of  Bougard,  in  trust,  to  convey  one  half  to 
the  complainant.     Of  this  pretended  agreement,  the  complain- 
ant now  seeks  to  compel  an  execution;  to  this  the  defendants, 
first  denying  any  such  pretended  agreement,  object: 
Vol.  I.  '  18 


138  CASES  IN  CHANCERY. 

First  circuit.  1.  Ihat  the  action  of  the  commissioners,  both  as  to  the  right 
and  the  evidence  of  the  right,  is  conclusive,  and  especially 
so,  since  the  conformation  by  congress.  7  Wheat.,  28,  237; 
Strother  vs.  Lucas,  12  Pet.,  U.  S.  R.,  413.  And  this  court  are 
in  no  wise  authorized  to  revise  those  proceedings,  nor  by  a 
possibility  conid  such  revision  be  productive  of  any  benefit  to 
the  complainant. 

2.  Had  the  complainant  a  valid  claim,  as  against  Antoine 
Bougard  or  his  children,  yet  the  real  defendants,  Disbrow  and 
Clark,  are  bona  fide  purchasers  without  notice,  and  as  such, 
will  be  protected,  and  equity  can  give  no  assistance  against 
them.  Frost  vs.  Beclitnan,  1  Johnson,  Ch.,  300;  9  Ves.,  24. 
But  had  the  defendants  had  full  notice  of  the  pretended  claim 
of  the  complainant,  it  would  in  no  wise  have  varied  their 
rights  or  altered  the  case,  for  the  claim  itself,  by  complain- 
ant's own  showing,  is  a  mere  nullity,  and  in  the  language  of 
Lord  Mansfield,  had  the  defendants  known  of  it,_  they  would 
also  have  known  it  was  void.  Wilson  vs.  Mason,  1  Cranch., 
70,  100.  As  every  man  is  charged  with  a  knowledge  of  the 
law.      1    John.    Ch.,   516;     J. yon   vs.    Richmond,  2  John.    Ch., 

51,  60. 

3.  If  any  such  agreement  as  that  contended  for  by  the  com- 
plainant, were  in  fact  made  and  entered  into,  yet  the  same 
was  null  and  void.  1.  As  being  contrary  to  the  policy  of  the 
law,  and  in  fraud  of  the  act  of  congress,  an  agreement  not 
only  to  deceive  the  commissioners,  but  to  obtain  the  title  to 
the  premises  by  false  pretences  and  absolute  falsehood,  and  all 
acts  or  agreements  in  fraudem  legis,  or  contrary  to  the  policy 
of  the  law,  are  prohibited  and  void.  The  William  King,  2 
Wheat.,  148,  153;  4  Pet.  U.  S.  Rep.,  441;  4  Johii.  Ch.,  254; 
2  Ohio,  510;  6  John.  Rep.,  194;  8  Johii.,  444.  But  2.  If  the 
complainant's  own  story  be  true,  he  entered  into  a  stipulation 
and  agreement  with  Antoine  Bougard,  to  commit,  or  procure 
to  be  committed,  actual  perjury,  in  the  proof  of  the  claim  be- 
fore the  commissioners,  and  he  himself  aided  in  the  commis- 
sion of  that  positive  crime,  for  as  he  would  now  have  this 
court  believe,  he  himself  procured  witness,  (so  his  bill  and  evL- 


CASES  IN  CHANCERY.  139 

dence   slate.)  to  swear  that  the  premises  in  question,  were  First  circuit, 
tlie  lawful  claim  of  Antoine  Bougard,  which,  by  his  present  ^"^^^^^^ 
case,  he  seeks  to  disprove;  and  the  maxim  both  of  equity  and    cougard. 
law  is,  ex  tui-pe  contractu  non  oritur  actio.      1  Bac.  Jlbst.,  Ill; 
2  Binn.,   101,  and  cases  there  referred  to;  4  Ves.  Jr.,  811;  8 
Ves.  Jr.,  51;  2  Eq.  Ca.  20;   Gilberts  Eq.  Rep.,  153.     And  3. 
To  any  such  agreement  as  that  the  complainant  now  seeks  to 
enforce  the  defendant's  plea,  is  a  conclusive  bar,  and  the  same 
is  void  by  the  statute  of  frauds.     Stat.  1820,  112,  425.     It  is 
an  express  trust,  if  any  thing,  by  parol,  and  therefore  void. 
It  is  not  an  implied   trust,  or  a  trust  in  any  way  resulting  by 
operation  of  law^;  if  any  thing,  it  is  a  direct  agreement  by 
parol,  to  create  a  trust;  an  attempt  to  enforce  a  parol  declara- 
tion of  a  trust.      The  case  contains   none   of  the  elements  of 
an  implied  or  resulting  trust.     A  resulting  trust  can  only  exist 
where  the  actual  payment  of  the  purchase  money  is  clearly 
proved.      Steer  vs.  Steer,  5  John.  Ch.,  1.     And  a  payment  of 
a  part,  or  any  thing  less  than  the  whole  purchase  money,  will 
not  raise  a  resulting  trust.     1  John.  Ch.,  582;  2  John.  Ch.,  405; 
2  Mad.  Ch.,  112;  3  Cow.,  588;  3  Ves.,  696;   1   Ves.,  366. 

But  to  this  the  complainant  insists,  that  a  trust  is  to  be  im- 
plied, for  the  purpose  of  preventing  a  fraudulent  use  of  the 
statute  of  frauds.  Trusts  for  that  purpose  are  never  implied, 
unless  some  clear  and  specific  act  of  fraud  is  distinctly  proved, 
as  preventing  the  execution  of  a  will  or  other  instrument, 
creating  an  estate  or  declaring  a  trust.  Roberts  on  Frauds, 
103;  Thi/ne  vs.  Thjjne,  1  Vernon,  290.  But  the  facts  in  this 
case  show  no  such  thing,  and  if  a  trust  might  be  implied  in 
the  present  case,  it  might  in  every  one,  to  the  entire  prostra- 
tion of  the  statute. 

But  the  complainant  further  insists  that  the  facts  in  the  case 
show  the  existence  and  creation  of  a  trust  before  our  statute 
of  frauds.  The  fact  is  not  so,  and  it  is  untenable  as  a  legal  po- 
sition; 1st,  because  prior  to  our  statute  of  frauds,,  the  legal  es- 
tate to  the  premises  was  not  in  Antoine  Bougard;  his  right  was 
a  mere  equity  under  the  act  of  Congress,  and  so  was  the  com- 
plainant's, if  he  had  any;  no  trust,  therefore,  could,  by  a  pos- 


140  CASES  IN  CHANCERY. 

Firstcircuit.  gibility,  havG  cxisted,  foi*  tliG  obvious  reason  that  there  was 
'^'^^^C^  no  legal  estate  to  sustain  it.     But,  2d,  if,  by  a  possibility,  any 
Bougard.    could  havG  oxistcd  before  the  legal  title  vested  in  Antoine  Bou- 
gard,  yet,  not  being  in  writing  or  declared  by  writing,  even 
before  our  statute  of  frauds,  it  would  have  been  void;  for  the 
rules  of  property  are  the  same  in  equity  as    at  law.      Gilbert, 
Law  of  Uses,  39.     Trusts  are  now  what  uses  were  before  the 
statute  of  uses,  as  was  expressly  decided   on  an  issue   out  of 
chancery.  Lord,  £7iglesea,  vs.  Lord  Jlltliam ;  Holt's  Rep.,  736. 
And  both  uses  and  trusts  have  always  been  governed  by  the 
same  rules  and  the  same  reasons  as  legal  estates.    Waats  vs. 
Ball,  1  P.  Will,  109.     For  were  not  the  rules  of  property  the 
same   in  equity  as  at  law,  in  the  language  of  all  the  books, 
thino-s  would  be  at  sea,  and  there  would  be  the  greatest  uncer- 
tainty.    Banks xs.  Sutton, 2  P.  Will,  713;  2Blackstone's  Coin., 
337.     Therefore,  the  rule  has  ever  been,  that  where  a  deed  or 
writing  was  necessary  before  the  statute  of  frauds,  for  passing 
the  legal  estate,  the  same  formality  was  necessary  to  create  or 
declare  a  use  or  trust.      Gilbert's  L.   Uses,  7;  7  Bac.  Mr.   Tit. 
Uses  and  Trusts,  92;  3  JltL,  151;  2  Atk.,  37.     No   legal  es- 
tate whatever,  by  the   fundamental  ordinance,  and  laws  both 
of  the  North-west  territory  and    the    territory  of  Michigan, 
could,  at  any  time,  be  created  or  transferred  by  parol.     F^in- 
damental  Ord.,  Art.  1;  Lindsey  vs.  Coats,  1    Ohio    Rep.,  113. 
For  these  reasons,  then,  any  pretended  trust  prior  to  the  sta- 
tute of  frauds,  would  be  a  nullity. 

The  Chancellor. — Every  material  allegation  in  the  bill  is 
fully  and  positively  denied  by  the  answer.  The  defendants, 
nine  in  number,  say  the  complainant  never  either  owned  or 
occupied  the  said  land,  or  any  part  or  portion  thereof;  but  the 
children  and  heirs,  on  the  contrary,  say,  from  their  earliest 
recollection,  their  father  held  the  entire,  exclusive  and  peacea- 
ble possession  of  the  whole  tract,  as  well  the  pretended  east- 
ern as  the  western  portion;  that  the  said  Antoine  did  not,  im- 
mediately before  his  death,  or  at  any  time,  direct  them  to  coi> 


CASES  IN  CHANCERY.  141 

vey  any  portion  of  the  tract  to  the  complainant,  or  admit  that  first circu-t. 
he  had  any  interest  therein.  jicrn.ini 

Indeed,  it  is  hardly  possible  that  an  answer  could  be  made    Dougard. 
more  full  and  complete  to  all  the  material  allegations  in  the 
bill.     The  defendants  also  set  up  and  insist  upon  the  statute  of 
frauds. 

Voluminous  testimony  has  been  taken  on  both  sides. 

The  testimony  has  been  carefully  considered,  and  I  cannot, 
from  a  review  of  it,  come  to  the  conclusion  that  the  claim  of 
the  complainant  can  be  sustained. 

The  complainant  relies  for  the  establishment  of  his  claim 
upon  the  testimony  of  Joseph  Beauxhomme,  Louis  Bernard, 
Louis  Morminee,  Joseph  Drouillard  and  Louis  Louigne. 

The  testimony  of  Beauxhomme  is,  as  to  admissions  made  by 
Bougard,  and  is  inconsistent  with  itself.  He  makes  Bougard 
admit  that  the  complainant  is  entitled  to  one  half,  and  says 
still  that  he  said  the  two  acres  troubled  him,  &c.;  and  it  is  en- 
tirely at  variance  with  the  allegations  of  the  bill,  that  the  land 
was  divided  and  complainant  in  the  possession  of  the  east  half. 
But  little  weight  can  be  attached  to  the  testimony  of  Louis 
Bernard.  It  is  in  proof  that  he  had  previously  alledged, 
that  the  present  complainant  had  no  interest  in  the  land  in 
question,  but  that  it  belonged  to  him.  Louis  Morminee  testi- 
fied before  the  board  of  land  commissioners,  that  it  belonged  to 
Bougard.  Drouillard  testifies  as  to  the  original  purchase  from 
the  Indians,  and  says  it  belonged  to  both  complainant  and  Bou- 
gard. Louis  Louigne  substantially  sustains  the  last  witness, 
but  is  manifestly  mistaken  as  to  other  statements  which  he 
makes,  and  so  much  so  as  at  least  to  cast  some  doubt  upon  his 
testimony.  There  is  such  discrepancy  and  so  much  uncer- 
tainty in  the  showing  in  this  case,  that  the  testimony  of  the 
witnesses  as  to  transactions  of  so  ancient  a  date,  should  be  re- 
ceived with  caution. 

The  testimony  of  Margaret  River  and  Narcissa  Delisle,  who 
have  resided  near  the  land  for  a  long  time,  strongly  sustains 
the  answers;  they  resided  near  the  lands  at  a  very  early  pe- 
riod, and  never  saw  the  complainant  at  work  on  the  land,  or 


142  CASES  IN  CHANCERY. 

Firstcircuit.  heard  of  his  claim.     Indeed  the  proof  of. any  actual  occupation 

„    ^^  bv  complainant,  aside  from  the  admission  testified  to  bv  Beaux- 
Bernard       ./  i  ' 

Bougard,  bommc,  is  very  slight.  When  it  is  considered  that  the  fact  of  a 
separate  and  distinct  possession  and  occupation  of  the  east  half 
of  the  tract  of  land  as  alledged  in  the  bill  for  so  long  a  time, 
and  up  to  a  period  so  recent,  must,  if  true,  have  been  so  noto- 
rious as  to  have  been  capable  of  clear  and  positive  proof,  cou- 
pled with  the  testimony  as  to  the  claim  of  Louis  Bernard,  that 
the  land  belonged  to  him;  and  also  the  testimony  of  Dui'ocher, 
that  so  late  as  1821,  the  complainant  claimed  the  whole  of  the 
land,  it  is  difficult  to  come  to  the  conclusion,  from  any  thing 
here  presented,  that  the  claimant  ever  had  such  a  possession 
and  occupation  of  any  portion  of  this  land,  either  joint  or  seve- 
ral, as  would  have  entitled  him  to  a  confirmation  bv  the  com- 
missioners,  under  the  act  of  congress  of  May,  1820,  continuing 
in  force  the  previous  act,  of  1807.  The  claim  of  the  com- 
plainant is  probably  founded  on  family  residence;  he  was  no 
doubt,  occasionally  there  when  a  boy.  It  is  true,  there  is 
great  discrepancy  in  the  testimony. 

But  after  a  confirmation  and  patent,  if  it  is  competent  at  all 
to  go  behind  it,  it  should  only  be  done  upon  the  clearest  and 
most  irrefragable  proof. 

The  point  insisted  upon  in  the  argument,  that  the  agree- 
ment, or  pretended  agreement,  that  both  complainant  and  Bou- 
gard  would  concur  in  making  proof  before  the  commissioners 
of  that  which,  according  to  the  allegations  in  the  bill,  did  not 
exist,  to  wit:  the  sole  occupation  and  improvement  of  this  pro- 
perty by  Bougard,  so  as  to  bring  him  within  the  requirements 
of  the  act  of  congress,  is  immoral,  is  entitled  to  weight.  The 
commissioners  had  no  authority  to  confirm  to  any  except  to 
those  who  proved  themselves  to  come  within  the  provisions 
of  the  act  of  congress.  They  have  never  acted  upon  any  claim 
or  right  of  this  complainant. 

If  the  allegations  in  the  bill  are  true,  the  commissioners  have 
been  led  by  false  lights,  to  do  an  act  which  they  were  not  au- 
thorized to  do.  And  if  this  conspiracy  had  not  existed,  it  is 
possible  such  facts  might  have  been  elicited,  as  would  have 


CASES  IN  CHANCERY.  143 

satisfied  them   that  of  riglit,  it  should  have  been  confirmed  to  rirstcircuit. 
neither  the  one  or  the  other.  ^^^^^-^^ 

IJcrnard 

The  ground  taken  by  the  complainant,  in  order  to  avoid  tlie    jj^"-  ^ 
statute  of  frauds,  is,  that  this  is  a  resulting  trust;  that  the  com- 
plainant, being  actually  entitled  to  the  east  half,  and  the  title 
having  been  vested  in  Bougard,  the  complainant  may  compel 
the  heirs  to  execute  the  trust. 

From  the  premises  it  will  be  perceived,  that,  in  the  view  of 
the  Court,  this  position  cannot  be  sustained. 

First.  It  is  not  sustained  by  such  clear  and  undoubted  proof 
as  should  be  required  in  a  case  like  the  present,  that  the  com- 
plainant was  ever  entitled  to  a  confirmation  of  any  portion  of 
this  trust. 

Indeed,  from  all  the  facts  and  circumstances  developed  in 
the  case,  I  am  inclined  to  think  otherwise. 

Second.  If  it  were  apparent  that  the  complainant  would 
have  been  entitled  to  a  confirmation,  it  would  still  be  question- 
able whether  it  would  come  within  the  rule  of  an  implied  or 
resulting  trust. 

A  resulting  trust  only  exists  where  the  actual  payment  of 
the  purchase  money  is  clearly  and  distinctly  proved.  Pay- 
ment of  a  part,  or  any  thing  less  than  the  whole,  will  not  raise 
a  resulting  trust.  Steere  vs.  Steere,  .5  Johns.  C/i.  R.,1;  Boyd 
vs.  McLean,  1  Johns.  Ch.  R.,  582. 

This  was  not  a  purchase.  The  occupants  of  these  lands 
could  not  claim  the  grant  of  the  government  as  a  matter  of 
strict  legal  right,  although  they  may  have  had  strong  equita- 
ble claims.  It  was  rather  in  the  nature  of  a  bounty  or  gift  by 
the  government. 

If  there  was  any  trust,  it  was  an  express  trust,  and  by  pa- 
rol, not  evidenced,  or  pretended  so  to  be.  either  as  to  its  ex- 
istence or  terms,  by  any  written  contract  or  memorandum 
whatever,  and,  to  this,  the  plea  of  the  statute  of  frauds,  as  has 
already  been  decided  in  this  court,  is  a  conclusive  bar. 

The  existence  of  a  trust  may  be  shown  by  parol,  but  there 
must  be  some  memorandum  in  writing  showing  its  terms. 

From  the  view  I  have  taken  of  the  case,  all  that  portion  of 


144  CASES  IN  CHANCERY. 

First  Circuit,  the  proccediiigs  and  proofs  which  relate  to  the  purchase  by 
^"f^^^"^  Clark  and  Disbrow,  with  notice,  as  is  allep^ed,  becomes  imma- 

Bernaril  '  '  o       ' 

Bougard.    terial.     If  they  had  notice  of  the  claim  of  the  complainant, 
it  was  a  notice  that  he  had  no  valid  claim.     The  bill  must  be 
dismissed  with  costs. 
Bill  dismissed. 


CASES  IN  CHANCERS.  145 


Benjamin  Tate  vs.  Jacob  Whitney. 

Where  It  nppenred  that  T.  had  accuscrl  W.  of  forcing'  his,  T.'a  name,  to  a  subscription  for  a  1339. 

ncwspiiper,  and    \V.  h;id  llirc;:teneJ  T.  wiih  p.  pro;ccu".i()ii  tor  slander,  .Mid  T.,  in  or>lcr  to    ^^'^"n.'i  Cir- 

settle  the  raaUcr,  had  iissigned  to  \V.  ii  lionJ  :m1  morisagt-,  upon  which  iliere  was  due  about  v^^»-s,^-^^^ 

theiiiini  of  three  hund.c.l  and  ihirlv-five  dollars,  r.nJ  T.  ;if.cr\v;i.rds  fJeJ  a  bill  a:;ainst  \V.  to  _, 

1  ate 
have  the  bond  an  1  nion^'awc  ro-ass  gned.     It  tens  held,  th::t  ihe  ;  ssgnnicnt  was  made  wl  hout  vs. 

considi-raiion,  and  W.  was  dire.-ied  by  decree  to  re-iissign  llic  LonJ  and  mortgage  to  T.  in  biiney. 

thirty  days  from  the  service  of  a  copy  of  tlic  decree. 

The  bill  in  this  case  was  filed  August  17,  1837,  and  states, ''''"""5' u. 
that  on  or  about  the  second  d;iy  of  June  of  the  same  year,  the 
complainant  possessed  all  the  right,  title,  interest,  and  claim 
to  a  certain  indenture  of  mortgage,  executed  by  William  Gil- 
crist  to  complainant,  bearing  date  April  8.  1837,  of  certain  pre- 
mises therein  described  and  setforlh  in  the  bill,  conditioned  to 
pay  five  hundred  dollars,  and  interest,  six  months  from  the 
date  thereof. 

That,  on  or  about  the  second  day  of  June,  1837,  complain- 
ant had  a  conversation  with  defendant  at  Jonesvillc,  in  the 
county  of  Hillsdale,  in  regard  to  the  subscription,  fjy  the  com- 
plainant, for  a  certain  newspaper  called  the  Christian  Palladi- 
um, in  which  conversation  complainant  told  the  defendant  that 
he  never  had  subscribed  for  said  paper,  nor  authorized  any 
other  person  to  subscribe  for  said  paper  for  him  (the  complain- 
ant,) and  that  complainant  further  stated  to  the  di^fondant,  that 
he,  the  defendant,  had  forged  bis  (the  complainant's,)  name, 
or  given  some  other  perst>n  liberty  to  sign  the  complainant's 
name  for  said  paper,  which  the  defendant  denied.  That,  soon 
after  sut>h  conversation,  the  defendant  threatened  to  prosecute 
the  complainant  for  the  words  he  had  spoken  as  aforesaid,  and 
told  com|jIainant  if  he  did  not  assign  over  to  the  defendant  the 
indenture  <if  mortgage,  and  the  bond  referred  to  therein  and 
accompanying  the  same,  as  a  collateral  security,  and  settle 
with  him.  the  defendmt,  for  the  language  complainant  had  used 
in  relation  to  the  subscription  for  said  newspaper,  he,  the  de- 

Voi..  T.  19 


146  CASES  IN  CHANCERY. 


Second cir-  fendant,  would   keep  the   complainant  in  prison  eight  or  ten 

cuit.  .  .  . 

^^^-v-^,  years,  for  what  he,  the  complainant,  had  said;  and  complainant 
'^^l'^  being  intimidated  and  greatly  distressed  at  the  threats  and  me- 
whuney.  jj-j^gg  Qf  ^hg  defendant,  and  being  ignorant  of  his  own  rights, 
and  of  the  law,  was  induced,  by  these  threats  and  menaces  of 
the  defendant,  to  execute  an  assignment  of  the  bond  and  mort- 
gage, and  did,  on  the  second  day  of  June  aforesaid,  execute 
and  deliver  to  the  said  defendant,  an  assignment  of  said  bond 
and  mortgage,  without  any  consideration  of  whatever  name 
or  nature,  and  did  actually  deliver  over  said  bond  and  mort- 
gage. Tiie  bill  further  alledges,  that  the  complainant  had  ap- 
plied to  the  defendant  to  re-assign  and  re-deliver  said  bond  and 
mortgage,  and  to  pay  complainant  the  amount  thereof,  &c., 
which  defendant  had  refused  to  do;  and  prays  that  the  defend- 
ant may  be  decreed  to  pay  to  the  complainant  whatever  mo- 
ney, if  any,  he  may  have  received,  or  shall  receive,  on  said 
bond  and  mortgage,  and  be  restrained  by  injunction,  from  as- 
signing, or  in  iiny  way  transferring  or  disposing  of  the  same, 
and  that  defendant  may  be  decreed  to  re-assign  and  deliver  up 
said  bond  and  mortgage  to  complainant. 

The  answer  admits  the  bond  and  moj-tgage,  and  that  at  the 
time  of  the  assignment  thereof,  there  was  then  due  thereon, 
about  the  sum  of  three  hundred  and  thirty-five  dollars;  states 
that  previous  to  the  time  of  the  assignment  stated  in  the  bill, 
the  defendant  had  been  i'requenlly  informed  by  divers  good  and 
worthy  citizens  of  the  county  of  Hillsdale,  that  the  complain- 
ant had  reported  and  declared,  and  was  in  the  frequent  habit 
of  reporting  and  declaring  that  the  defendant  had  forged  the 
name  of  the  complainant  to  a  subscription  for  the  newspaper, 
mentioned  in  the  bill;  that  defendant  was  advised  to  ask  some 
redress  of  the  complainant  lor  his  slanders;  that  the  defend- 
ant called  on  the  complainant  at  the  town  of  Litchjield,  about 
eight  miles  from  Jonesville,  and  had  a  conversation  with  the 
complainant,  in  which  the  defendant  informed  the  complainant 
of  the  slanderous,  false  and  defamatory  declarations  made 
by  the  complainant,  of  and  concerning  the  defendant,  charging 


CASES  IN  CHANCERY.  147 

him  with  the  crime  of  forgery;  that  the  complainant  admitted  ®"*"u^'^' 
to  defendant,  that  he  (the  complainant,)  had  before  then,  at  di- 
vers times  and  places,  and  in  the  hearing  and  presence  of  di- 
vers persons,  reported  and  declared  that   the   defendant   had 
forged  his  (the  complainant's,)    name   to  the  said  subscription, 
and  that  the  reports  and  declarations  were  false,  and  without 
any  foundation  in  truth,  and  that  the  complainant  was  willing 
to  redress  the  wrong  he  had  done  to  the  reputation  and  good 
name  and  credit  of  the  defendant  by  such  false  antl  slanderous 
reports;  to  which  the  defendant  replied,  that  the  said  complain- 
ant must  make  him  (the  defendant.)  satisfaction  in    some  way, 
or  that  the  defendant  should  seek  redress  by  proceedings  at  law; 
that  complainant  then  informed  defendant,  that  if  he  (the  de- 
fendant,) would  lake  the  bond  and  mortgage  in  full  satisfaction 
for  the  wrongs  done  to  the  defendant  by  the  false  and  slander- 
ous reports  and  declarations  of  the  complainant,  he  (the  com- 
plainant,) would  duly  assign  over   the  same  to  the  defendant; 
and  that  complainant  strongly  solicited  the  defendant  to  accept 
of  the  mortgage  in  satisfaction  for  the  said  wrong;   that  at  the 
special  request  and  urgent  solicitation  of  the  complainant,  the 
defendant  agreed  to  accept  and  receive  the  bond  and  mortgage 
in  full  satisfaction  of  said  wrong  and  injury,  and  thereupon  the 
complainant  assigned  and  delivered  the  said  bond  and  mortgage 
to  defendant,  and   defendant  at  the   same    time   acquitted  and 
discharged  complainant  from  all  liability  for  his  false  and  slan- 
derous reports,  &c. 

Denies  the  threats  of  prosecution,  &c.,  and  also  denies  that 
defendant  told  complainant  he  would  keep  him  in  jail,  as  stated 
in  the  bill,  denies  that  he  was  requested  to  re-assign  the  bond 
and  mortgage,  as  stated  in  the  bill. 

The  cause  was  heard  upon  bill,  answer  and  proofs. 

E.  Lawrence,  for  complainant. 

I.  The  transfer  of  the  mortgage  referred  to  in  the  bill,  and 
answer  was  obtained  by  duress,  threats  or  menaces,  and  is 
therefore,  void.      1  Story's  Com.  on  Eg.,  243,  4.  5;  (note  1.) 


149  CASES  IN  CHANCERY. 


Second  cir-      II.  That  the  assignment  of  the  mortgage  was  without  con- 

ciiit.  _ 

s^^N/-"^./'  sideration,  and  void. 

Ta^e  1st.  The  words  spoken  by  Tate,  that  the  defendant  had  for- 

Whituey.  g^j  ^^  subscribed  his  (Tate's,)  name  to  the  subscription  Hst  of 
a  newspaper  callej  the  "Christian  PaUadium,"  are  true,  and 
of  course  a  justification  to  the  complainant. 

Maybee  and  Manchester,  in  their  testimony,  state  that 
Whitney  ordered  the  complainant's  name  to  be  added  to  the 
list. 

2d.  The  charge,  as  made  by  complainant  against  Whitney, 
o{  forging  or  subscribing  liis  name  to  the  list,  was  not  actionable 
in  itself,  as  it  did  no.t  inipute  any  crime  punishable  by  law,  and 
no  special  damage  is  alledged  or  proved.  1  Com.  Dig.,  390. 
{Tit.  F.  0.) 

III.  The  charge  of  Tate  against  Whitney  did  not  amount  to 
tL  forgery,  and  might  be  called  any  other  crime  with  equal  pro- 
priety. 

\st.  The  act  charged  was  not  :i  forgery,  because  neither  the 
statute  or  the  common  law  embraces  such  an  act.  BacorCs 
Mr.  Title  forgery,  B. 

2d.  It  was  not  a  forgery,  because  there  was  no  intention  on 
the  part  of  Whitney  to  injure  or  defraud  Tate  or  any  other 
person,  in  the  act  charged.     4  BL  Com.  202. 

Zd.  It  was  not  a  forgery,  because  Whitney  was  to  receive  no 
benefit  from  the  act,  but  Tate  himself  was  the  person  to  be 
benefitted  by  the  act  of  Whitney. 

Atit.  Equity  will  relieve  when  any  undue  influence  has  been 
used  over  an  ignorant  and  unsuspecting  man.  1  Story'' s  Com, 
on  Eq.,  242. 

5th.  The  declarations  of  Whitney  to  Tate,  that  he  would 
imprison  him,  &c.,  were  false,  and  acted  as  a  surprise  and  im- 
position upon  Tate.      1  Story's  Com.  on  Eq.  202. 

Gth.  The  inadequacy  of  the  consideration  for  the  assignment 
of  the  mortgage  is  so  great,  that  it  seems  unconscionable,  and 
shocks  the  understanding  of  every  man,  and  bears  on  the  face 
of  it,  conclusive  and  decisive  evidence  of  fraud.  1  Story's 
Com.  on  Eq.,  250. 


CASES  IN  CHANCERY.  149 

P.  R.  Adams  lor  defendant.  scconri  cir- 


Cllll. 


The  Chancellor.     From  the  bill,  answer  and  testimony,  it       „,  , 

'  J  '  ^  ale 

is  apparent  that  the  defendant  was  practising  upon  the  fears  of  whi^ey. 
a  timid  and  ignorant  man,  and  that  the  assignment  of  the 
mortgage  in  question,  was  in  fact  procured  without  any  con- 
sideration whatever.  The  complainant  is  entitled  to  a  de- 
cree that  the  defendant,  Whitney,  re-assign  and  re-deliver  said 
mortgage  to  the  complainant  within  thirty  days  from  the  ser- 
vice of  a  copy  of  the  decree  in  this  cause. 
Decree  accordinsjly.* 


*  An  appeal  was  taken  in  tliis  case  to  the  supreme  court,  and  the  decree  of  the  Ch:.nccllor 
affirmed,  January  2-i,  1839. 


150  CASES  IN  CHANCERY. 


Thompson  vs.  Mack  and  others. 

]P39  Where  M.  gave  T.  a  mortgage,  April  14,  1831,  as  iiidemniij'  against  a  certain  debt  for  which  T. 

FirstCircuit.  ^^s  liable,  which  mortgage  was  recorded  July  24,  1833,  and  T.  was  sued  and  had  the  debt  to 
pay  ;  and  April  9,  1833,  M.  conveyed,  by  an  absolute  deed,  the  lot  mortgaged,  logelher  with 
anollier  lot,  to  C,  and  C.  gave  M.  an  agreement  in  writing,  to  re-convey  the  lots  to  M.  upon 
M's  paying  the  amount  of  his  debt  f  about  #150,)  due  to  C,  and  shortly  afierwards,  M.  being 
in  embarrassed  circumstances,  applied  to  C.  I'or  a  further  credit,  and  in  order  to  obtain  such 
further  credit,  M.  gave  up  the  agreement  from  C.  to  re-convey,  and  C.'s  deed  from  M.  was 
recorded  July  20,  1833,  (being  four  days  previous  to  the  record  of  T's  mortgage,)  and  the 
writing  or  agreement  to  rc-convey  from  C.  to  i\I.  was  not  recorded,  and  June  26,  1634,  C. 
conveyed  the  premises  to  K.,  for  the  amount  due  from  M.  to  C,  and  June  3,  1835,  K.  con- 
veyed to  D.  and  R.,  it  was  held  lluit  the  deed  from  M.  to  C.  was  a  mortgage  in  its  inception, 
and  continued  so  to  be,  (notwithstanding  M.  had  delivered  up  to  C.  his  agreement  to  re-con- 
vey,) and  ought  to  have  been  recorded  as  such,  and  tluit  the  recording  of  that  deed,  as  a  deed, 
though  the  record  was  prior  to  that  of  T's  mortgage,  could  give  it  no  priority  over  that  mort- 
gage. 

Where  a  party  claims  priority  under  or  by  virtue  of  the  statute  regulating  the  registry  of 
deeds  and  mortgages,  he  must  show  a  compliance  with  its  provisions  in  order  to  entitle  him 
to  sucli  priority. 

April 30.  Tjjis  ^ag  a  bju  to  foreclose  a  mortgage,  and  stated  that  the 
complainant,  August  11,  1830,  purchased  a  quantity  of  drugs 
and  medicines  to  the  amount  of  #197  23  of  the  firm  of  Law- 
rence, Keese  6t  Co.,  of  the  city  of  New  York.  That  after- 
wards, and  before  the  goods  were  received,  it  was  agreed  be- 
tween the  complainant  and  Mack,  that  the  latter  should  take 
the  drugs  and  medicines  and  pay  for  them;  and  that  Mack,  on 
the  14th  April,  1831,  gave  a  mortgage  to  the  complainant  on 
lot  number  fifty-seven,  in  the  village  of  Pontiac,  to  indemnify 
him  against  the  payment  of  the  debt  due  to  Lawrence,  Keese 
&  Co.,  which  mortgage  was  afterwards  recorded,  July  24, 
1833;  that  Mack  had  neglected  to  pay  Lawrence,  Keese  & 
Co.,  who  had  sued  the  complainant  for  the  price  of  the  drugs 
and  medicines,  and  I'ecovered  a  judgment  against  him  of  $265 
47  damages,  and  $8  00  costs,  which  the  complainant  had  paid; 
that,  April  9,  1833,  Mack  conveyed,  by  an  absolute  deed,  the 
lot  mortgaged,  (together  with  another  lot  in  Pontiac,)  to  the 
defendant  Chamberlain,  whose  deed  was  recorded  July  20, 
1833,  four  days  previous  to  defendant's  mortgage.  The  bill 
charged  that  the  deed  from  Mack  to  Chamberlain,  although  ab- 


CASES  IN  CHANCERY.  151 

solute  on  its  face,  was  intended  by  the  parties  to  operate  as  a  Firstcircuit. 
mortgage  only,  and  was  given  to  secure  a  debt  due  from  Mack,  .^.|,„„,p,„„ 
to  Chamberlain;  that  Chamberlain  had  bound  himself  by  bond,      ^i"^.^ 
or  other  writing,  to  re-convey  the  premises  on  the  payment  of 
the  debt,  and  that  such  bond  or  writing  for  a  re-conveyance, 
was  not  recorded,  by  Chamberlain,   with  his  deed;  it  further 
states,  that  June  26,    1834,  Chamberlain  conveyed  the  lot  to 
the  defendant  Keeney,  who,  June  3,  1834,  conveyed  it  to  the 
defendants  Draper  and  Richardson;  and  Chamberlain,  Keeney, 
Richardson  and  Draper,  were  severally  charged  with  notice 
of  complainant's  mortgage  at  the  time  of  their  respective  pur- 
chases. 

The  defendants  put  in  several  answers.  Mack,  in  his  an- 
swer, admits  the  purchase  of  the  drugs,  &c.,  but  not  till  after 
they  had  been  received  by  Thompson,  and  put  into  Mack's 
store,  for  sale;  states  that  Thompson  put  a  clerk  in  the  store 
to  sell  the  goods;  that  the  clerk  sold  a  considerable  portion  of 
them,  and  used  part  of  the  money,  the  proceeds  of  the  sales, 
for  his  private  purposes;  that  Mack  aided  in  selling  the  goods, 
&c.;  that  April  14,  1831,  Mack  purchased  of  Thompson,  the 
drugs  unsold,  and  the  debts  due  for  those  which  had  been  sold, 
and  agreed  to  indemnify  Thompson  against  the  debts  due  by 
him  to  Lawrence,  Keese  &  Co.,  and  to  pay  the  $32  for  trans- 
"  portation,  and  that  Mack  and  wife,  on  the  same  day,  executed 
the  mortgage  mentioned  in  the  bill,  as  indemnity  to  Thomp- 
son; that  the  mortgage  was  not  recorded  until  the  time  stated 
in  the  bill;  that,  December  10,  1832,  he  paid  to  Thompson 
$56  98,  to  be  applied  on  the  mortgage,  and  took  receipt  to 
that  effect;  that  Thompson  is  also  indebted  to  him  in  the  sum 
of  $91,  for  services,  and  also  owes  him  for  rent,  and  on  other 
accounts,  as  he  believes,  to  the  amount  of  the  debt;  denies  any 
knowledge  of  the  judgment  against  Thompson;  admits  the 
deed  to  Chamberlain,  of  April  9,  1833,  and  its  record,  and^that 
he  took  from  Chamberlain,  a  paper,  not  under  seal,  in  which 
Chamberlain  agreed  to  re-convey  the  lots,  if  he  should  in  a 
short  time,  (could  not  state  how  long.)  pay  to  Chamberlain  the 
amount  due  him,  which  was  about  $150;  thai  he.  Mack,  being 


152  CASES  IN  CHANCERY. 


First circ-.iit.  in  embarrasscd  circumstances,   shortly  afterwards  applied  to 
'"■'''^'^''^^  Chamberlain  for  further  credit,  and  to  obtain   such  credit,  he 

Thompson 

Mack  gfive  up  the  agreement  to  re-convey,  and  surrendered  all  right, 
title,  claim  and  equity  of  redemption  in  the  premises;  that  he 
did  not  tell  Chamberlain  of  Thompson's  mortgage,  and  does 
not  believe  that  Chamberlain  knew  of  that  mortgage;  that 
the  reason  that  two  lots  were  deeded  to  Chamberlain,  was  that 
there  was  an  incumbrance  of  dower  on  one  of  them;  that 
Keeney  bought  the  lots  fifty-seven  and  fifty-two,  of  Chamber- 
lain; that  he  never  informed  Keeney,  and  does  not  believe  he 
knew  of  Thompson's  mortgage,  at  the  time  he  purchased  the 
lots;  that  the  sale  to  Keeney  was  not  for  the  benefit  of  Mack 
or  his  family. 

Chamberlain,  in  his  answer,  admits  that  Mack  was  indebted 
to  him,  and  gave  him  a  deed  of  lots  number  57  and  52,  April  9, 
1833;  denies  that  he  had  any  notice  of  Mack's  mortgage  to 
Thompson.  Further  states  that  when  Mack  gave  up  the  writ- 
ten agreement,  he  released  and  surrendered  all  right  to  re- 
deem; that  he  paid  Mack  the  full  value  of  the  premises,  en- 
cumbered as  they  were  by  a  claim  of  dower.  That  Keeney 
paid  the  full  value  for  the  lots;  that  at  the  time  of  making  the 
deed  to  Keeney,  he,  Keeney,  had  no  notice  of  Thompson's 
mortgage,  to  his  knowledge.  Keeney,  in  his  answer,  denies 
any  knowledge  of  Thompson's  mortgage  at  the  time  he  pur- 
chased from  Chamberlain,  and  until  he  had  sold  to  Draper  and 
Richardson;  admits  the  deed  from  Mack  to  Chamberlain,  of 
April  9,  1833,  and  deed  from  Chamberlain  and  wife  to  him, 
June  26,  1834.  Denies  all  knowledge  of  any  agreement  other 
than  the  deed  from  Mack  to  Chamberlain,  until  after  he  sold 
to  Draper  and  Richardson;  that  he  cannot  state  the  exact 
amount  paid  by  him  for  the  lots;  that  he  gave  full  value,  and 
purchased  them  for  himself,  &c.  Admits  the  sale  by  him  to 
Draper  and  Richardson,  June  3,  1835,  and  their  mortgage, 
&c.,  to  him. 

Draper  and  Richardson,  in  their  answer,  admit  that  they 
had  notice  of  Thompson's  mortgage,  either  before  or  after  their 
purchase,  but  do  not  remember  which. 


CASES  IN  CHANCERY.  158 

R.  Manning,  for  complainant.  Firstcircuit. 

The  deed  from  Mack  to  Chamberlain,  although  absolute  on     '"""p^"" 


its  face,  is  nevertheless  a  mortgage.  It  was  given  to  secure  a 
debt  to  Chamberlain,  who  was  tore-convey  the  premises  when 
Mack  paid  him. 

As  a  mortgage,  the  defeasance,  or  agreement  to  re-convey, 
should  have  been  recorded  with  the  deed,  in  the  record  of 
mortgages,  as  the  statute  requires.  Rev.  Laws  of  1833,  page 
283  and  284,  §  3.  By  the  registry  of  it  as  a  deed,  instead  of 
a  mortgage,  it  did  not,  as  a  mortgage,  gain  priority  over  the 
complainant's  mortgage.  Deij  vs.  Dunham,  2,  J.  C.  R,,  182; 
Grimstone  vs.  Carter,  3  Paige,  421;  James  vs.  Morey,  2  Cowen, 
246.  The  registry  of  it,  as  a  deed,- availed  nothing.  The  re- 
gistry of  a  legal  instrument  does  not  change  the  nature  or  ef- 
fect, of  the  instrument.  It  does  not  change  a  mortgage  into  a 
deed,  or  a  deed  into  a  mortgage.  Its  only  effect  is  to  give  pri- 
ority to  legal  instruments  which  have  been  properly  recorded. 
Whether,  therefore,  the  defeasance  was  delivered  up  to  Cham- 
berlain before  or  after  the  complainant's  mortgage  was  recor- 
ded, if  after  the  deed  had  been  recorded,  cannot  alter  the  case, 
for  it  could  not  make  a  good  record  out  of  what  was  before  a 
bad  record,  or  no  record  at  all.  From  the  testimony  of  Cham- 
berlain, it  appears  the  surrender  of  the  defeasance  was  not  in- 
tended to  turn  the  mortgage  into  an  absolute  deed.  He  con- 
sidered the  deed  afterwards,  as  he  had  done  before,  as  security 
for  the  debt  Mack  owed  him.  The  complainant's  mortgage 
was  recorded  long  before  Keeney  purchased  of  Chamberlain, 
and  as  Chamberlain's  deed  is  not  good,  either  as  a  deed  or 
mortgage,  against  the  complainant's  mortgage,  Keeney's  deed 
certainly  cannot  be.  If  there  was  any  doubt,  that  Chamber- 
lain's deed  continued  to  be  a  mortgage  after  the  defeasance 
was  surrendered,  and  it  should  be  insisted  the  defeasance  was 
given  up  to  Chamberlain  before  the  deed  was  recorded,  the 
testimony  is  too  vague  and  uncertain  upon  that  point  to  take 
away  the  common  law  rights  of  the  complainant.  The  defen- 
dants, when  seeking  to  gain  an  advantage  through  the  registry 

Vol.  I.  20 


vs. 
Mack. 


164  CASES  IN  CHANCERY. 


First  Circuit 


ircuit.  \^^y^  should  clearly  show  themselves  entitled  to  it  by  a  compli- 
Thompson  ancc  vvith  the  law. 

vs. 

Mack.  B  p^  n   Wither  ELL,  for  the  defendant. 

The  defendants  are  entitled  to  have  the  bill  dismissed  and  a 
decree  for  costs. 

1st.  Because  Chamberlain  was  a  purchaser  without  notice. 
See2  Ves.  Jun.,  453;  3  Fes.,  221;  4  Fes.,  383;  9Ves.,24. 

Chamberlain  took  up  the  writing  of  defeasance  before  his 
deed  from  Mack  was  recorded;  when  that  instrument  was 
taken  up,  if  not  before  his  deed  from  Mack,  became  absolute. 

By  the  writing  or  article  to  Mack  from  Chamberlain,  Mack 
was  to  have  but  sixty  days  to  redeem;  the  deed  was  then  ab- 
solute. 

Keeney  was  a  purchaser  for  a  bona  fide  consideration,  with- 
out notice,  and  if  Chamberlain  had  notice  Keeney  will  be  pro- 
tected. Deinarest  vs.  Wipicoop,  3  J.  C.  R.,  147;  Jackson  vs. 
Oiv.,  8  John's  R.,  141.  ^ct  concerning  mortgages,  seelaws  1833, 
p.  283,  Sec.  2,  also  act  concerning  deeds,  8^c.,  lb.,  p.  279,  Sec.  2. 

Draper  and  Richardson  are  protected  as  well  as  Keeney, 
under  the  principle  that  a  purchaser  icith  notice  to  himself  from 
one  who  purchased  without  notice,  may  protect  himself  under 
the  first  purchaser.      Bumps  vs.  Platner,  etal.,  1  J.  C.  R.,  213. 

The  Chancellor.  From  the  facts  stated  in  the  bill,  answer 
and  testimony,  there  can  be  no  doubt  that  the  conveyance 
from  Mack  to  Chamberlain  was  a  mortgage,  and  a  mortgage 
only  in  its  inception;  and  it  is  evident  that  it  so  continued,  and 
was  so  regarded  until  the  transactions  were  closed  by  the  pay- 
ment of  the  amount  due  to  Chamberlain,  and  the  conveyance  to 
Keeney, 

It  is  admitted  to  have  been  so  in  the  first  instance. 

Chamberlain,  in  his  testimony  says,  that  the  instrument  of 
defeasance  was  given  up,  so  that  the  estate  conveyed  should 
remain  as  security  for  further  advances. 

The  account  with  Mack  was  not  closed  at  that  time. 

Chamberlain  says  he  should,  at  any  time,  have  re-convey- 
ed to  Mack  upon  payment  of  the  amount  due,  and  an  allow- 
ance for  hi*  trouble  in  securing  his  debt. 


CASES  IN  CHANCERY.  155 

He  did  actually  convey  the  premises  to  Keeney,  the  father- fi^tt^ircuit. 
in-law  of  Mack,  upon  payment  of  the  advances  made  by  him,  Thompson 
and  the  charges  for  his  trouble.  Mack. 

The  statute  {Laws  of  1833,  page  284,  section  3,)  provides 
that  "  every  deed  conveying  real  estate,  which  by  any  other 
instrument  or  writing,  «hall  appear  to  have  been  intended  as 
security,  in  the  nature  of  a  mortgage,  though  it  be  an  absolute 
conveyance  in  terms,  shall  be  considered  as  a  mortgage  and 
be  deemed  and  adjudged  to  be  liable  to  be  registered  as  other 
mortgages  are  by  virtue  of  this  act;  and  the  person  or  per- 
sons for  whose  benefit  such  deed  shall  be  made,  shall  not  have 
the  advantage  given  by  this  act  to  mortgages,  unless  every  in- 
strument and  writing  operating  as  a  defeasance  of  the  same, 
or  explanatory  of  its  being  designed  to  have  the  effect  only  of 
a  mortsasre  or  conditional  deed,  be  also  herewith  registered  in 
substance  as  in  case  of  mortgages." 

The  deed  of  Chamberlain  with  the  writing  or  agreement  to 
Mack,  ought  to  have  been  registered  as  a  mortgage.  The  re- 
cording of  that  deed,  as  a  deed,  though  the  record  was  prior 
to  that  of  Thompson's  mortgage,  can  give  it  no  priority  over 
that  mortgage.  See  Deyvs.  Dunham,  2  /.  C.  R.,  182;  Grim- 
stone  vs.  Cartel',  3  Paige,  R.,  421. 

Four  days  after  the  record  of  the  deed  from  Mack  to  Cham- 
berlain, Thompson  recorded  his  mortgage  and  thus  gave  notice 
of  its  existence. 

Keeney  claims,  however,  to  have  been  a  purchaser  without 
notice. 

But  if  in  fact  the  transactions  between  Mack  and  Chamber- 
lain constituted  the  instrument  a  mortgage  and  no  more,  the 
record  of  the  mortgage  of  Thompson  should  be  regarded  as  a 
sufficient  notice  to  a  subsequent  purchaser. 

The  fact  of  a  subsequent  sale,  especially  while  the  mort- 
gage of  Thompson  was  standing  upon  the  record,  would  not 
change  the  character  of  the  transaction  between  Mack  and 
Chamberlain.  It  would  defeat  the  salutary  provisions  of  the 
statute  to  permit  it  to  be  evaded  by  a  sale  to  another  when  the 
party  claiming  (as  in  this  case  Thompson  had  done,)  had  pla 
ced  his  mortgage  upon  record. 


156  CASES  IN  CHANCERY. 

Firstcircuit.      f^e  mortgage  to  Thompson  being  of  prior  date,  without 
Thompson  reference   to  the  registry  laws   would  have  priority;  the  de- 
Mack,      fendants  claim  priority,  by  virtue  of  the  provisions  of  the  sta- 
tute.    In  order  to  entitle   themselves  to  such  priority,  they 
must  conform  to  its  terms,  which  has  not  been  done. 

PiTack  sets  out  in  his  answer,  that  the  mortgage  is  nearly  or 
quite  paid.  This  will  render  it  necessary  that  it  be  referred  to 
a  masiar  to  examine  and  report  the  amount  due  upon  the 
mortgage,  after  allowing  all  proper  credits  and  offsets,  and  to 
report  to  this  court  with  convenient  speed;  and  further  direc- 
tions reserved  until  the  coming  in  of  the  masters  report. 


CASES  IN  CHANCERY.  157 


The  County  Commissioners  of  the  County  of  La-      leso. 

^-.     __  FirstCircutt. 

PEER  VS.  Alvin  JN.  Hart  and  others. 

Bills  of  pence  are  only  allowed  where  the  complainant  lias  established  Ills  right  at  law ;  or 
where  the  persons  who  controvert  the  right,  are  so  numerous  as  to  render  an  issue  under  the 
direction  of  this  Court  indispensable  to  cnihraee  all  the  parlies  concerned,  and  save  a  multi- 
plicily  of  suits. 

An  injunction,  sliiying  proceedings  in  sixty-seven  suits,  commenced  in  one  dny  against  the 
county  coinmiasioncrs,  before  justices  of  the  peace,  on  county  orders,  was,  on  motion,  dis- 
solved, on  Ihe  ground  that  tlieir  defence  was  at  law. 

The  bill  in  this  case  was  filed  May  23,  1839,  and  slated  that  November 

•'  ■  '  30. 

November  16th,  1838.  the  board  of  supervisors  of  the  county 
of  Lapeer,  assuming  to  act  in  the  performance  of  the  duties 
imposed  on  the  county  commissioners  by  the  revised  statutes, 
after  the  county  commissioners  had  been  declared  duly  elect- 
ed, but  before  they  had  qualified,  proceeded  to  enter  into  a 
contract  with  one  Norman  Davison,  by  which  the  supervisors 
pretended  to  bind  the  county  to  pay  Davison  twelve  hundred 
dollars  to  complete  a  court  house  (the  frame  of  which  was 
up,)  for  the  county,  and  directed  the  issuing  of  county  orders 
on  the  treasurer  of  the  county  for  six  hundred  dollars,  which 
were  issued  and  delivered  to  Davison  as  apart  payment;  that 
the  orders  were  issued  in  small  sums,  from  one  dollar  to  one 
hundred  dollars  each,  which  orders  were  required  to  be  paid 
by  the  county  treasurer  out  of  any  moneys  in  the  county  trea- 
sury, not  otherwise  appropriated  ;  were  made  receivable  in 
payment  of  county  taxes,  and  payable  January  1,  1839,  to 
Norman  Davison  or  bearer.  That,  at  their  first  meeting  after 
being  duly  qualified,  viz:  the  first  Monday  of  January,  1839, 
the  county  commissioners,  deeming  the  proceeding  of  the  board 
of  supervisors  illegal  and  unauthorized  by  law,  passed  a  reso- 
lution to  that  effect,  and  immediately  gave  notice  to  the  collec- 
tors of  the  several  towns  in  said  county,  and  to  the  treasurer 
thereof,  not  to  receive  the  said  orders  in  payment  of  taxes. 
That,  when  the  orders  became  due  and  payable,  payment  was 
demanded  of  the  treasurer  by  the  several  holders,  which  pay- 


158  CASES  IN  CHANCERY. 

nrstcircuit.  meiit  was  refused,  as  well  for  the  reason  that  the  county  com- 
^-^"^^'"'*^  missioners  had  forbidden  their  payment,  as  for  the  reason  that 

Lapeer  ' 

county  there  was  no  moneys  in  the  treasury  not  otherwise  appropria- 
""■"'■  ted.  That  the  holders  of  the  orders  commenced  a  series  of 
vexatious  suits  against  the  county  commissioners  on  the  or- 
ders, before  justices  of  the  peace;  that  sixty-seven  suits  were 
brought  in  one  day,  process  in  each,  returnable  on  the  same 
day,  before  three  diflercnt  justices,  keeping  their  offices  and 
doing  business  at  distances  of  from  five  to  twelve  miles  from 
each  other,  for  the  purpose  of  subjecting  the  county  commis- 
sioners to  great  inconvenience,  and  deprive  tliem  of  making 
their  defence.  That  judgments  had  been  rendered  against  the 
commissioners  in  forty-four  of  the  suits  so  commenced,  and 
the  other  twenty-three  were  still  pending  and  undecided.  The 
bill  further  stated,  that  the  whole  amount  of  judgments  reco- 
vered, amounted  to  about  five  hundred  dollars,  and  that  the 
holders  unnecessarily  and  vexatiously  multiplied  suits;  that  ap- 
peals had  been  taken  in  five  of  the  cases,  for  the  purpose  of 
testing  the  legality  of  the  proceedings  of  the  board  of  super- 
visors, and  the  principle  involved  in  all  the  suits  was  the  same; 
that  the  commissioners  were  unable  to  take  appeals  in  all  the 
cases,  in  consequence  of  there  being  no  funds  in  the  treasury 
to  pay  the  costs;  that  the  costs  which  were  required  to  be 
paid,  to  enable  them  to  take  appeals  from  the  several  judg- 
ments, would  fall  but  little  short  of  the  Vv^hole  amount  of  the 
judgments.  The  bill  charged,  that  the  holders  of  the  orders 
conspired  to  commit  a  fraud,  and  extort  money  from  the  coun- 
ty, &c.,  and  prayed  for  an  injunction  to  stay  proceedings  at 
law  upon  the  suits  already  commenced,  and  to  restrain  the 
holders  of  the  orders  from  commencing  other  suits  at  law,  un- 
til the  suits  appealed  should  be  determined.  An  injunction 
was  granted  according  to  the  prayer,  and  this  was  a  motion 
to  dissolve  the  injunction  for  w^ant  of  equity  in  the  bill. 

D.  Goodwin,  in  support  of  the  motion. 


HarU 


CASES  IN  CHANCERY.  159 

1.  The  court  has  no  jurisdiction.     This  is  wholly  at  law,  ^''^--'^'cuk. 
and  the  courts  of  law  can  try  the  whole  matter.  Lapeer 

2.  The  complainants  themselves  show  that  in  fortv-four  ca-  vs. 
ses  tried,  judgment  was  for  the  plaintifls,  and  not  against  them. 
The  cases  where  courts  of  equity  interfere,  are  usually  those 
•where,  in  trials  at  law,  the  complainant  has  sustained  a  title, 
or  right,  and  there  are  subsequent  repeated  actions  to  question 
that  title  or  right. 

3.  Here  the  right  claimed,  is  on  the  part  of  the  several  defen- 
dants in  the  bill,  who  held  the  orders,  and  is  resisted  by  the 
complainants.  The  complainants  are  not  seeking  to  enforce 
a  right  which  is  invaded,  but  to  resist  a  right  claimed,  and  by 
their  own  showing,  established  by  forty-four  judgments. 

4.  It  does  not  appear  from  the  bill,  that  the  defences  in  the 
several  cases,  were  one  and  the  same.  They  might  have  been 
different  in  each  case.  The  bill  does  not  shaw,  or  alledge,  what 
the  pleas  were  in  any  of  the  cases;  in  some,  it  seems,  the  pleas 
were  to  the  jurisdiction  of  the  court. 

5.  When  chancery  interferes  to  prevent  a  muliiplicity  of 
suits,  it  is  in  cases  where  the  subject  of  the  suits  is  the  same, 
and  not  different.  Here  the  suits,  according  to  the  bill,  are 
upon  separate  orders,  and  these  not  in  the  hands  of  the  origi- 
nal holders,  but  transferred  and  held  by  different  individuals, 
and  where  the  holders  may  hold  for  a  valuable  consideration, 
and  without  notice.  1  Maddox,  166;  2  Johns.  Ch.  Rep.,  281; 
3  Johns.  Rep.,  601. 

6.  In  fortj'-four  cases  there  were  judgments  rendered,  and 
in  five  of  these  only,  there  were  appeals.  In  the  rest,  the  judg- 
ments are  absolute,  and  this  court  can  never  restrain  their  col- 
lection; the  defence,  if  any,  now  being  purely  at  law,  and 
the  judgments  having  become  absolute.  In  the  five,  the  judg- 
ments are  suspended  by  the  appeals,  and  it  does  not  appear 
that  the  questions  therein  are  the  same;  and  in  the  remainder, 
the  pleas  are  to  the  jurisdiction,  and  this  court  are  not  ap- 
prised what  are  the  questions  that  are  to  be  tried,  and  cannot, 
therefore,  interfere. 

7.  The  cases  where  the  court  interferes,  are  when  it  can 


16a  CASES  IN  CHANCERY. 

Firstcircuit.  oi'der  a  single  issue  to  be  tried,  and  that  tiiat  shall  decide  the 
'"^^^^^"'*^  whole.     In  this  case,  from  various  causes,  it  is  impossible; 

Lapeer  i  j  j 

•'''^f^     and  when   an   injunction  can  thereupon  be  granted  and  made 
""""*•      perpetual  upon  the  parties,  the  single  right  being  decided.  Here 
this  is  also  impossible. 

•A.  S.  Porter  and  A.  D.  Eraser,  contra. 

TiiK  Chancellor, — I  am  satisfied  this  case  does  not  come 
within  the  principles  of  any  of  the  cases  cited  in  support  of  the 
injunction. 

Bills  of  peace  are  only  allowed  where  the  complainant^  has 
satisfactorily  established  his  right  at  law;  or  where  the -per- 
sons who  controvert  the  right  are  so  numerous  as  to  render 
an  issue  under  the  direction  of  this  court  indispensable,  to  em- 
brace all  the  parties  concerned,  and  save  amultiplicity  of  suits. 
Fonb.  Eg.,  28;  Eldridge  vs.  Bill,  2  Johns.,  Ch.  281. 

It  is  not  pretended  in  this  case,  that  the  right  in  litigation 
has  been  established  in  favor  of  the  complainants,  on  the  con- 
trary, all  the  cases  which  have  been  tried,  have  been  deter- 
mined in  favor  oi  the  defendants  in  this  cause. 

It  is  not  indispensable  that  this  court  should  interfere  in  the 
present  case,  (on  account  of  the  great  number  of  persons  who 
controvert  the  right,)  and  direct  an  issue  under  the  control  of 
this  court.  The  parties  who  have  brought  suits  on  the  orders, 
are  all  regularly  in  the  courts  of  law,  and  each  claims,  in  his 
own  right;  nor  is  it  pretended  that  the  defence  cannot  properly 
be  made  at  law^  The  complainants  do  not  even  ask  this  court 
to  interfere  and  direct  an  issue,  but  concede  that  their  defence 
is  at  law.  :  - 

It  is  urged  that  more  suits  are  brought  than  were  necessary 
to  determine  the  right  to  recover.  In  the  case  of  Peters  vs. 
Prevost,  Paine' s  U.  S.  Circuit  Court  Rep.,  64,  an  application 
was  made  for  an  injunction  to  stay  proceedings  in  ninety-two 
suits  in  ejectment,  (where  the  parties  pleading  title,  and  the 
testimony  were  the  same  in  each  suit,)  until  one  or  more  could 
be  tried,  and  the  remainder  to  abide  the  event,  and  the  injunc- 
tion was  refused.    If  the  suits  in  the  present  case  were  wrongly 


CASES  IN  CHANCERY.  IGl 

brought,    the  defendants  below    will  recover  their  costs    on  Firstcircuit. 
appeal;  and  while  the  statute  does  not  inhibit  the  bringing  of '^-^'^''"^-^ 
suits  in   the  manner  in  which   these   suits    were    brought,  and     ^'"""'-y 
gives  the  right  of  appeal,  it  would  be  stepping  beyond  all  pre-      "'^'• 
cedent  for  this  court  to  stay  proceedings  by  injunction,  on  the 
ground  of  multiplicity  of  suits. 

The  fact  that  there  were  not  sufficient  funds  in  the  treasury 
to  pay  the  costs  of  appeal,  can  hardly  be  seriously  urged  as  a 
reason  for  the  interference  of  this  court. 

That  the  holders  of  these  orders  are  unnecessarily  harras- 
sing  the  complainants,  does  not  sufficiently  appear;  the  suits 
were  all  brought  on  the  same  day,  before  three  diffi3rent  justi- 
ces, and  the  complainants  appeared  and  defended.  If  suits  had 
been  brought  singly,  from  day  to  da}^  this  allegation  might 
have  been  urged  with  more  force. 

I  had  doubts  of  the  propriety  of  granting  the  injunction  in 
this  case,  and  in  any  view  I  can  take  of  the  question,  I  am  now 
satisfied  that  it  cannot  be  sustained. 

The  parties  were  all  properly  in  the  courts  below,  and  are 
now  there,  and  it  cannot  be  indispensable  for  this  court  to  in- 
terfere, to  bring  all  the  parties  into  one  suit.  Indeed,  the 
rights  of  each,  for  aught  that  appears,  stands  on  grounds  dif- 
ferent from  the  other. 

If  the  defendants  did  not  take  appeals,  for  want  of  funds,  it 
is  one  of  those  misfortunes  against  which  this  court  cannot  re- 
lieve. 

It  is  admitted  that  the  defence  is  at  law,  and  the  parties 
must  there  make  it. 

Injunction  dissolved. 


Vol.  I.  21 


162  CASES  IN  CHANCERY. 


Eldred  and  Eldred  vs.  Camp  and  Shumway. 

1840.  Where  the  equity  of  the  bill  is  denied,  the  injunction,  on  motion,  will  be  dissolved ;  and  where 

Third  Cir-       jj  j^  gj,own  by  a  special  plea  that  there  is  no  equity  in  the  bRl,  it  is  the  same,  so  far  as  regards 
^^  J,^  the  motion  to  dissolve,  as  though  the  equity  of  the  bUl  was  fully  denied  by  answer. 

Eldred  ut       •  t         i  •     • 

vs.  Motion  to  dissolve  an  injunction. 

Camp.  .  <■        1 

January  24.  This  WQs  a  Creditors'  bill  in  the  usual'  form,  setting  lorth 
that  the  complainant,  Daniel  B.  Eldred,  recovered  against  the 
defendant  Camp,  and  one  Boville  Shumway,  two  judgments  in 
the  circuit  court  for  the  county  of  Calhoun,  and  that  execu- 
tions had  been  duly  issued  on  said  judgments,  delivered  to  the 
sheriff,  and  returned  unsatisfied;  that  the  sum  of  $621  28,  with 
interest  from  November  10,  1838,  over  and  above  all  just  claims 
by  way  of  set  off,  or  otherwise,  was,  at  the  time  of  filing  the 
bill,  due  to  the  complainant,  Daniel  B.  Eldred,  on  the  judg- 
ments. 

An  injunction  was  granted. 

The  defendant  Camp,  put  in  a  special  plea  to  the  bill,  in 
which  he  admits  the  recovery  of  the  judgments,  the  issuing  of 
the  executions,  the  delivery  of  the  same  to  the  sheriff,  and  the 
amount  due  as  stated  in  the  bill,  and  then  proceeds:  "Yet  this 
defendant  severally  pleads  in  bar  to  the  said  complainant's  said 
bill  of  complaint;  and  says,  that  after  the  issuing  of  the  two 
executions  above  mentioned  and  described,  on  the  said  two 
judgments  above  mentioned,  with  the  commands,  endorsements 
and  directions  above  set  forth,  and  the  delivery  of  the  same  to 
the  said  sheriff  of  the  county  of  Calhoun,  in  the  life  time 
of  the  said  two  executions,  and  before  the  return  day  thereof, 
to  wit:  on  or  about  the  30th  day  of  August,  1839,  the  said 
sheriff' of  the  said  county  of  Calhoun,  to  wit:  Loren  Maynard, 
by  his  deputy.  Solomon  Platner,  by  virtue  of  said  executions, 
and  the  said  endorsements  so  made  thereon,  as  aforesaid,  le- 
vied upon  and  seized  a  large  quantity  of  real  estate  as  the 
property  of  this  defendant  and  the  said  Boville  Shumway,  the 
defendants  in  the  said  executions,  which  said  property  is  de- 


CASES  IN  CHANCERY.  163 


scribed  as  follows,  (describing  the  land;)  and  this  defendant  Thirdcir- 
further  severally  says,  that  after  such  levy  and  seizure  of  the  v,^^^-^^ 
aforesaid  described  lands  and  real  estate,  by  the  said  sheriff,     '^''''^'^ 

''         •/  5  VS. 

by  virtue  of  said  two  executions,  to  wit:  on  the  said  30th  day  '^'^'^' 
of  August,  in  the  year  last  aforesaid,  he,  the  said  sheriff,  by  his 
deputy  above  named,  caused  a  notice  of  the  sale  of  said  lands 
and  real  estate  to  be  published  in  a  newspaper  called  the  Cal- 
houn County  Patriot,  to  take  place  on  Friday  the  first  day  of 
November  then  next,  at  the  court  house  in  the  village  of 
Marshall,  at  one  o'clock  in  the  afternoon  of  that  day,  and  that 
afterwards,  and  on  the  sixth  day  of  November  1839,  the  said 
sheriff  of  the  said  county  of  Calhoun,  by  his  said  deputy,  above 
named,  returned  the  said  two  executions  to  the  clerk  of  the 
said  circuit  court,  out  of  which  court  the  same  where  issued, 
with  a  return  endorsed  upon  each  thereof,  and  signed  by  the 
said  deputy  sheriff,  that  he  returned  said  executions,  property 
on  his  hands,  for  the  want  of  bidders;  which  executions  were 
each  of  them  then  and  there  filed  by  the  said  clerk,  and  the 
aforesaid  return  of  the  said  sherifl',  entered  by  the  said  clerk 
in  the  book  of  records  kept  by  him,  the  said  clerk,  for  that 
purpose,  pursuant  to  the  provisions  of  the  statute  in  such  case 
made  and  provided.  And  this  defendant  further  says,  that  the 
above  mentioned  and  described  executions,  are  the  only  exe- 
cutions that  have  been  issued  upon  the  said  two  judgments, 
and  that  if  any  such  return  as  is  specified  in  said  complainant's 
said  bill  of  complaint,  was  ever  made  on  said  two  executions,  or 
on  either  of  them,  by  the  said  sheriff  of  the  said  county  of  Cal- 
houn, or  his  said  deputy,  the  same  was  falsely  and  fraudulently 
made,  by  the  aid,  advice  or  procurement  of  said  complainant, 
or  their  solicitor  or  attorneys,  after  the  said  executions  had 
been  so  returned  by  the  said  deputy  sheriff,  wiih  such  return 
thereof  endorsed  thereon  and  signed  by  him,  as  above  specified, 
and  after  said  executions  had  been  so  filed  by  the  said  clerk, 
and  the  return  thereof  so  entered  in  the  said  book  of  records, 
as  aforesaid,  without  the  knowledge  or  consent  of  this  defen- 
dant, or  the  said  Boville  Shumway,  and  without  any  leave  for 
that  purpose   obtained  from   the  said  Calhoun  county  circuit 


164  CASES  IN  CHANCERY. 

Third  cir-   court     All  of  which  matters  and  things,  this  defendant  does 

y^^^^!^!-^^^  aver  and  plead  to  the  said  complainant's  said  bill  of  complaint, 

Eidred      jjj-|(;i  humbly  craves  whether  he  shall  make  any  other  or  further 

vs.  •' 

^^^^^'      answer  to  the  said  bill  of  complaint." 

This  plea  is  verified  by  the  oath  of  the  defendant  pleading 
the  same. 

The  defendants,  upon  filing  the  plea,  moved  to  dissolve  the 
injunction.  The  motion  came  on  for  hearing  at  the  January 
term,  in  the  third  circuit. 

Lee  and  Pratt,  in  support  of  the  motion. 
Sandford  and  Bradley,  contra. 

The  Chancellor.  Where  the  equity  of  the  bill  is  denied, 
the  injunction,  on  motion,  will  be  dissolved;  and  where  it  is 
shown  by  a  special  plea,  that  there  is  no  equity  in  the  bill,  it 
is  the  same,  so  far  as  regards  the  motion  to  dissolve,  as  though 
the  equity  of  the  bill  were  fully  denied  by  answer. 

A  creditor's  bill  proceeds  upon  the  ground  that  the  com- 
plainant has  exhausted  his  remedy  at  law,  and  the  regular  re- 
turn of  the  execution  unsatisfied,  by  the  proper  officer,  is  evi- 
dence of  that  fact.  Here,  it  appears  from  the  plea,  that  the 
executions  were  not  returned  unsatisfied,  and  the  facts  set  up 
in  the  plea,  are  not  denied.  This  defeats  the  equity  of  the 
bill,  and  the  injunction  must  be  dissolved. 

Injunction  dissolved. 


CASES  IN  CHANCERY.  1G5 


Henry  Brockholst   Livingston   and   Carkoll   Li- 
vingston vs.  Enoch  Jones  and  others. 

The  acknowledgment  is  no  part  of  an  instrument  of  assignment.  lS-40. 

The  allegation  in  a  bill  that  the  assignment  of  a  bond  and  mortgage  was  duly  acknowledged  f^'''st<-'ircuit. 
before  a  commissioner  of  deeds  nccordin?  to  Ihc  laws  of  the  stale  of  Xew  York,  where  the  ^-^^^v"^^^ 
same  was  executed,  is  s,uflioieii[  on  demurrer.  Livinpston 

VB. 

A  guardian  has  llie  right  to  collect  and  receive  money  due  to  his  ward,  on  a  bond  and  niort-        Jones, 
gage,  or  sell  and  aj>ign  the  bond  and  mortgage  ii.  the  exercise  of  his  discretion  as  guardian. 

This  was  a  bill  filed  to  foreclose  a  mortgage,  and  slated  that  February  25. 
September  9,1834,  Enoch  Jones  executed  his  bond  to  Henry  I. 
Seaman,  John  Van  Wyck  and  Nathaniel  Norton,  in  the  penal 
sum  of  $10,000,  conditioned  to  pay  said  Seaman,  Van  Wyck 
and  Norton,  their  representative  executors,  administrators  and 
assigns,  the  sum  of  $5,000  on  or  before  September  9,  1839, 
with  interest  payable  semi-annually,  commencing  on  the  ninth 
day  of  March  then  next.  That  Enoch  Jones  and  Sophia  his 
wife,  in  order  to  secure  the  payment  of  said  sum  of  money, 
with  interest,  on  the  same  day  executed  a  mortgage  to  said 
Seaman,  Van  Wyck  and  Norton,  their  heirs  and  assigns,  of 
certain  premises  in  the  city  of  Detroit;  that  February  10, 
1835,  Seaman,  Van  Wyck  and  Norton  assigned  the  bond  and 
nnortgage,  for  the  consideration  therein  mentioned,  to  Billop 
B.  Seaman,  guardian,  &c.,  of  Henry  Brockholst  Livingston, 
Jasper  Hall  Livingston  and  Catharine  Louisa  Powell;  that 
March  23,  1835,  the  execution  of  the  deed  of  assignment 
which  was  made  in  the  state  of  New  York,  was  duly  ac- 
knowledged in  due  form  of  law,  before  D.  Hobart,  then  being 
a  commissioner  of  deeds  in  and  for  the  city  and  county  of  New- 
York,  agreeably  to  the  law  of  said  state;  and  May  12,  1825, 
the  deed  of  assignment  was  duly  registered  in  the  office  of  the 
register  of  deeds  for  the  city  of  Detroit;  that  June  18,  1836, 
and  before  the  money  in  the  mortgage  mentioned  became  due 
or  was  payable,  and  before  payment  of  the  same  or  any  part 
thereof,  Billop  B.  Seaman,  guardian,  &c.,  in  consideration  of 
one  dollar  to  him  paid  by  Carroll  Livingston,  as  attorney  for 


bond  and  mortgage;  and  on  the  same  day  the  execution  of  the 
'^^-       deed  of  assignment  which  was  executed  in  the  state  of  New 


166  GASES  IN  CHANCERY. 

First  circuit.  Hcnry  Brockholst  Livingston,  assigned  to  Carroll  Livingston  the 

Livingston 

vs. 

Jones. 

York,  was  duly  acknowledged,  in  due  form  of  law  before  John 
McVickar,  junior,  then  being  a  commissioner  of  deeds  in  and  for 
the  city  and  county  of  New  York,  in  said  state  of  New  York, 
agreeably  to  the  laws  of  said  state.  That  said  last  mentioned 
assignment  of  said  mortgage  was  made  to  Carroll  Livingston  as 
attorney  for  Henry  Brockholst  Livingston,  and  for  his  sole  and 
exclusive  use  and  beiiefit.  That  the  interest  had  been  paid  up 
to  March  9,  1837,  and  the  residue  remained  due  and  owing  up 
to  the  time  of  filing  the  bill.  That  there  was  due  at  the  time 
of  filing  the  bill  the  sum  of  $525  00,  interest. 

That  while  Lewis  Godard  was  owner  of  the  premises  and 
before  he  sold  and  conveyed  the  same  to  Enoch  Jones,  to  wit  : 
.  May  1,  1833,  he  mortgaged  the  same  premises  to  James*  N. 
Tuttle,  to  secure  the  payment  of  the  sum  of  $5,000,  in  five  equal 
annual  instalments.  The  bill  charged  most  of  the  amount  of 
money  mentioned  in  this  mortgage  from  Godard  to  Tuttle,  to 
have  been  paid,  and  further  stated,  that  December  22,  1836, 
Enoch  Jones  sold  and  conveyed  the  premises  to  Lewis  Godard, 
who  at  the  time  of  filing  the  bill,  claimed  to  be  the  only  pro- 
prietor of  the  premises.  That  March  15,  1837,  Godard  mort- 
gaged the  said  premises  or  some  part  thereof,  to  Henry  H. 
Brown  to  secure  the  sum  of  $10,000,  payable  three  months  af- 
ter the  date  of  said  mortgage.  That  August  1,  1838,  Godard 
mortgaged  the  same  premises  to  Enoch  Jones,  to  secure  the 
payment  of  the  sum  of  $10,000. 

The  bill  averred  that  the  deed  granted  by  Jones  to  Godard, 
as  well  as  the  mortgage  granted  by  Godard  to  Brown,  and 
also  the  mortgage  from  Godard  to  Jones,  were  each  of  them 
granted,  accepted  and  received  with  the  full  knowledge  and 
notice  of  the  prior  lien  of  complainants  mortgage  on  the  pre- 
mises. 

To  this  bill,  the  defendant,  Lewis  Godard,  demurs  for  se- 
veral causes. 

1st.   That  it  does  not  appear  that  D.  Hobart,  before  whom 


CASES  IN  CHANCERY.  167 

the  first  assignment  was  acknowledged,  was  authorized  by  ihc  Firatcircuit. 
laws  of  New  York  to  take   acknowledgments  of  conveyances 
of  real  estate. 

2d.  That  it  did  not  appear  that  John  McVickar,  jr..  before 
whom  the  second  assignment  is  alledged  to  have  been  acknow- 
ledged, had  authority,  by  the  laws  of  New  York,  to  take  such 
acknowledgment. 

3d.  That  it  did  not  appear  by  what  authority  Billop  B.  Sea- 
man, who  is  alledged  to  have  been  guardian  of  the  minors,  and 
to  have  held  the  bond  and  mortgage  as  such  guardian,  assign- 
ed, sold  and  transferred  the  same. 

4th.  That  Jasper  Hall  Livingston  and  Catharine  Louisa 
Powell,  having  an  interest  in  the  subject  matter,  are  not  made 
parties. 

D.  GooDw^iN,  in  support  of  the  demurrer,  as  to  the  third 
cause  assigned,  said: 

It  is  essential  that  it  appear  by  what  authority  Billop  B.  Sea- 
man sold  and  transferred  the  bond  and  mortgage.  As  guardi- 
an, his  authority  is  special,  and  he  is  confined  strictly  to  it, 
and  he  could  not  so  dispose  of  the  bond  and  mortgage  as 
he  is  alledged  to  have  done,  without  special  authority  from  a 
court  of  competent  jurisdiction,  or  unless  specially  authorized 
by  a  statute  of  New  Y'ork,  and  in  either  case,  it  must  be  shown 
in  the  bill;  and  the  purchaser  purchasing  of  a  guardian  who 
is,  hy  law,  a  special  trustee,  must  look  to  his  pow'er;  and  no 
authority  appearing,  the  complainants  have  not  the  title  they 
set  up,  and  Carroll  Livingston  has  none,  but  the  title  still  re- 
mains in  the  minors.  Cited  Reeves'  Do7n.  Rel,  325-6;  Mor- 
rellvs.  Dickey,  1  Johns.  Ch.,  153. 

A.  D.   Fkasek,  contra. 

In  the  7th  of  Johnson's  Chancery  Reports,  page  152,  a  case 
is  to  be  found  decisive  of  the  points  made  by  the  defendant 
in  this  case,  in  respect  to  the  power  of  a  guardian.  That  was 
a  case  also  where  a  bond  and  mortgage  were  taken  to  a  per- 


168  CASES  IN  CHANCERY. 

Firstcireuit.  SOU  ill  the  character  of  a  guardian,  and  the  Chancellor,  in  his 
opinion,  states,  '<  that  he  had  a  legal  control  over  the  bond  and 
mortgage,  and  a  right  to  collect  and  receive  the  money  due 
thereon;  and  a  legalright  to  sell  and  assign  the  same,  in  the  due 
exercise  of  his  discretion,  as  guardian,  is  a  proposition  that  does 
not  seem  to  admit  of  disputed  And  the  Chancellor  further  adds, 
that  "  the  necessity  or  expediency  of  the  measure  rested  en- 
tirely in  the  judgment  and  discretion  of  the  guardian.  He 
was,  as  between  him  and  the  purchaser,  the  proper  and  the  ex- 
clusive judge  of  that  expediency."  See  the  several  cases  cited 
by  the  Chancellor  in  that  opinion. 

It  does  not  lie  with  the  mortgagor  to  object  that  \he  poioer 
of  sale  was  not  regularly  acknowledged  and  recorded.  Jack- 
son vs.  Cohlen,  4  Cowen,  266. 

The  Chancellor. — The  acknowledgment  is  no  part  of  the 
instrument  of  assignment.  The  allegation  in  the  bill  as  to  the 
assignments  having  been  duly  acknowledged,  according  to  the 
laws  of  the  state  of  New  York,  where  the  same  were  execu- 
ted, are  sufficient  on  demurrer. 

The  third  cause  of  demurrer  assigned,  seems  to  be  the  point 
most  relied  upon  by  the  party  demurring. 

The  bond  and  mortgage  having  been  duly  assigned  to  Billop 
B.  Seaman,  guardian  of  Jasper  Hall  Livingston  and  Catharine 
Louisa  Powell,  there  can  be  no  doubt  that  he  had  the  legal 
right  to  collect  and  receive  the  money  due  thereon,  or  sell  and 
assign  the  same,  in  the  exercise  of  his  discretion  as  guardian. 
This  principle  is  fully  established  in  the  case  of  Field  vs.  Schief- 
felin,  7  Johns.  Ch.,  150;  and  the  allegations  in  the  bill  of  the 
several  assignments,  are  sufficient  upon  demurrer. 

This  is  not  a  claim  set  up  by  the  infants,  alledging  fraud  in  the 
assignment,  but  it  is  a  demurrer  by  Godard,  who  claims  title 
to  the  premises  as  subsequent  purchaser  from  the  mortgagor, 
and,  it  having  been  decided  that  the  guardian  had  a  right  to 
assign  the  bond  and  mortgage  and  that  the  allegations  in  the 
bill  of  such  assignment  are  sufficient,  the  demurrer  must  be 
overruled. 

Demurrer  overruled. 


CASES  IN  CHANCERY.  163 


John  Steward  and   others  vs.  Israel   C,  Stevens 

and  another. 

The  jurUdicUon  of  ihc  court  of  chancery,  to  iipply  the  property  of  the  defendent,  which  is         l?40. 
beyond  the  reach  of  an  execulion  ;;t  law,  to  the  saisfaclioii  of  the  debt  due  to  the  judguienl  »"  ""at  Circuit, 
creditor,  proceeds  upcntlie  f.roiind  that  he  has  exhaust:;d  hisreuie.ly  at  lu.\v.  ^■^^^/—^t./' 

Steward 
An  execution  cannot  be  legally  returned  unsatisfied,  until  the  return  day.  ^g^ 

Stevens. 
A  creditor's  bill  cannot  be  properly  filed,  until  i;fer  the  return  day  of  the  execution  at  law, 

though  the  execution  should  be  actually  returned  before  the  return  day. 

This  \vas  a  creditor's  bill,  filed  September  5,  1838,  and  set  Apriiao. 
forth  that  the  compKiiiiants  recovered  a  judgment  in  the  circuit 
court  for  the  county  of  Wayne,  against  Israel  C.  Stevens, 
May  24,  1838,  for  the  sum  of  $500  23,  damages;  that,  July 
12,  a  fieri  facias  was  issued  on  the  judgment,  returnable  on  the 
third  Tuesday  of  November  following;  that  the  sheriff  return- 
ed the  fieri  facias  the  28lh  day  of  August,  with  a  return 
cndoi'sed  thereon,  "that  after  due  and  diligent  search,  he  had 
not  been  able  to  find  any  goods  and  chatties,  lands  and  tene- 
ments of  the  defendant,  and,  therefore,  he  returned  the  said 
writ  of  feri  facias  unsatisfied."  The  bill  alledged  the  full 
amount  of  the  judgment  remained  unsatisfied,  and  prayed  for 
a  discovery,  &cc. 

To  this  bill  the  defendants  demurred. 

George  E.  Hand,  in  support  of  the  demurrer. 

This  is  a  creditor's  bill,  filed  under  our  statute,  to  reach  equi- 
table assest  of  a  judgment  debtor,  but  cannot  be  sustained,  be- 
cause, 

1.  The  execution  alledged  in  complainant's  bill,  to  have  been 
issued  and  returned  unsatisfied,  was  not  endorsed,  as  to  when 
the  cause  of  action  accrued,  as  required  by  law,  and  was,  there- 
fore, irregularly  issued.      Laics  of  1833,  p.  433,  sec.  30,  31. 

2.  The  return  of  the  sheriff,  made  on  said  writ,  as  alledged  in 
thebill,  is  wholly  defective,  and  not  good  at  law,  and  insufficient 
to  base  chancery  proceedings  upon,  under  the  statute.    An  in- 

VoL.  I.  22 


no  CASES  IN  CHANCERY.  ' 

Firstcirciit.  sufficient  return  is  no  return.      Watson  on  duties  of  Sheriffs, 

^t^I^ClT'  G9,  70,  76;  1  Bar.  Sf  Jl/d  ,190. 
Stevens.  3.  Preliminary  to  filing  a  creditor's  bill,  our  statute  requires 
return  oi  fieri  facias  unsatisfied.  Revised  Statutes,  365,  sec.  25. 
But  \he  fieri  facias  upon  which  this  bill  is  based,  was  not  returned 
in  pursuance  of  the  command  of  the  writ,  but  was  irregularly 
returned,  long  before  the  return  day  thereof,  in  fraud  of  the 
statute,  and  not  within  its  meaning  or  intent.  1  ^^rc/i.  Prac, 
286;  2  Burrows'  Rep.,  812;  2  Saunders'  R.,  101;  1  Salkeld, 
321;  2  Lord  Raymond,  144;  2  Tidd.  Prac,  1,036;  2  Hoff.  Ch. 
Pr.,  116;    Watson's  Sheriff,  70;  Cro.  E Hz.,  512. 

4.  The  remedy  against  equitable  assest  is  given  only  in 
cases  where  the  legal  remedy  has  been  exhausted,  and  proved 
unproductive,  or  not  sufficiently  productive  to  satisfy  the  exe- 
cution; but  the  legal  remedy  is  not  exhausted  until  the  expira- 
tion of  i\\G  fieri  facias,  and  on  sufficient  levy.  And  the  writ  may 
be  executed  at  any  time  before  or  on  the  day  it  is  returnable, 
even'although  it  should  before  that  time  have  been  returned 
to  the  clerk's  office.  Rev.  Stat.,  355,  sec.  25;  Clarkson  vs. 
DePeyster,  3  Paige  R.,  322  ;  Brinkerhonf  vs.  Brown,  4  J.  C. 
R„  675;  Arch.  Prac,  266. 

5.  Hence,  it  necessarily  follows,  that  a  creditor's  bill  cannot 
be  filed  until  after  the  return  day  of  the  execution,  issued  upon 
the  complainant's  judgment,  even  although  the  execution  should 
have  been  actually  returned  before  that  time,  and  so  are  the 
authorities.  Cassidy  vs.  JMeacham  et.  al.,  3  Paige  R.,  311;  2 
Hoff.  Ch.  Prac,  116. 

Henry  N.  Walker,  contra. 

The  Chancellor. — The  first  and  second  causes  of  demur- 
rer assigned,  it  is  not  necessary  now  to  consider. 

The  third  cause  of  demurrer  is  well  taken,  and  is  conclusive. 
The  fieri  facias  was  returned,  and  the  bill  filed,  a  long  time  before 
the  return  day.  The  jurisdiction  of  this  court,  to  apply  the 
property  of  the  defendent,  which  is  beyond  the  reach  of  ex- 
ecution at  law,  to  ihj  satisfaction  of  the  debt  due  to  the  judg- 
ment creditor,  proceeds  upon  the  ground  that  he  has  exhausted 


CASES  IN  CHANCP1R\.  171 

his  re-nedy  at  law.     Cassidy  vs.  Meacham,  3  Poi^re,  312.    Un-'"'"'^"""- 
til  the  return  d.;y  of  the  execution,  it  is  the  duty  of  ihc  ofiicor    ste«:rJ 
to  seize  and  sell  any  property  of  the  defendant,   found  within    sw^ns 
his  county.      The  execution,   therefore,  cannot  be  considered 
as  legally  returned  unsatisfied,  until  the  return  day. 

In  the  case  under  consideration,  it  docs  not  appear  but  that 
the  officer,  before  the  return  day  of  the  fieri  facias,  could  have 
found  property  sufficient  to  satisfy  the  judgment.  The  statute 
{R.  Slat.,  365,  sec.  25,)  provides,  that  "  uhenever  an  execution 
against  the  property  of  the  defendant,  ^h  dl  have  been  issued 
on  a  judgment  at  law,  and  shall  have  been  returned  unsatisfied, 
in  whole  or  in  part,  the  party  suing  out  such  execution,  may 
file  a  bill  in  chancery  against  such  defendant,"  &c. 

This  section  is  similar  to  a  provision  of  the  revised  statutes 
of  New  York,  and  in  that  state  it  has  been  uniformly  held  that 
a  creditor's  bill  cannot  be  properly  filed,  until  after  the  return 
day  of  the  execution  issued  on  the  complainant's  jud'^ment, 
although  the  execution  had  been  actually  returned  before  the 
return  day.  {S(e  Beck  vs.  Burdett,  1  Po.ige,  R..  3Q5;  Ed- 
meston  vs.  Lyde,  lb.  637;  Clarkson  vs.  I)e  Peyster,  3  Paisre's 
R.,  312,  320;  Mc  Elwin  vs.  IViUis,  9  Wend.,  560.)  And  this  is 
unquestionably  the  true  rule.  A  defendant  ouijht  not  to  bo 
harassed  by  a  suit  in  chancery,  when  he  has  property  which 
can  be  reached  at  law,  during  the  life  of  the  execution. 

The  demurrer  is  well  taken,  and  must  be  sustained. 

Demurrer  sustained. 


173  CASES  IN  CHANCERY, 


Zebulon  Kirby  vs.  Justus  Ixgersoll  and  Nehemiah 

Ingersoll. 

First  Circuit.  One  pnrtner  may  bind  Ins  co-parlner  in  .ill  matters  wiihin  the  scope  of  the  no-partnership  ;  the 
v^^s/-^/       iini  lied  authority  of  one  partner  to  hind  his  co-parlner,  is  generally  limited  to  such  acts  as  arc 
K  jri:v  in  '''eir  nature,  essential  to  the  general  objects  of  the  co-partnership. 

IngcrsoU.  One  pr.rtner  cannot  make  a  general  assignment  of  the  partnership  effec's,  to  a  trustee  for  the 
benefit  of  the  creditors  of  the  firm,  wiUiout  the  linowledge  or  consent  of  his  co-partner,  when 
he  is  on  the  spot,  and  might  have  been  consulted. 
There  is  no  inipliei  authority  resulting  from  the  nature  of  the  contract  of  co-partnership,  that 
will  authorize  one  partner  to  make  a  general  assignment  of  the  partnership  effects,  without 
the  knowledge  ui  tOiisciii  uf  Ills  co-irariiicr. 

The  nulhorlty  implieiily  vcs'.ed  by  each  partner  in  the  other,  is  for  the  purpose  of  carrying  on 
the  concern,  and  not  for  the  purpose  of  breaking  ii  up  and  destroying  it. 

One  pr.rtner  does  not,  by  any  implicaiion,  confer  a  power  upon  his  co-partner,  of  divesting  him 
of  all  inierest  in,  or  aulhorily  over,  ihc  concern. 

One  partner  may  transfer  a  portion  of  the  assets,  for  ihepurposeof  paying  or  securing  debts,  or 
to  raise  means  to  carry  on  the  concern;  but  the  power  of  divesting  entirely  one  partner  of  his 
interest,  .ippoin.ins;  a  trustee  for  both,  and  breaking  up  the  concern,  is  not  one  of  the  powers 
either  contemplated  or  implied  by  the  contract  of  co-partnership. 

Where  the  coven.-vnls  and  conditions  of  bonds  and  other  deeds  are  several,  they  may  be  good  in 
part,  and  void  as  to  the  residue. 

The  belter  opinion  seems  to  be,  that  even  at  common  law,  a  deed  fraudulent  in  part,  is  altoge- 
ther voiii. 
By  the  term  fraud,  the  legal  intent  and  effect  of  the  acts  complained  of,  is  meant. 

The  law  lias  a  standard  for  measuring  the  intent  of  parties,  and  declares  an  illegal  act,  prejudi- 
cial to  therights  of  others,  a  fraud  upon  such  rights,  although  the  party  denies  all  intention  of 
connnilting  a  fraud. 

The  principle  upon  which  general  assignments,  by  one  partner,  have  been  declared  void  is,  that 
one  partner  ha<  no  anthority  to  make  a  general  assignment  of  the  partnership  effects  in  fraud 
of  the  righlsof  his  CO- partner  to  participate  in  the  distribution  of  the  partnerslrip  effects  among 
the  credi'.ors. 

A  distinction  seems  to  have  been  taken  between  instruments  void  by  statute,  and  void  at  coin- 
mon  law. 

The  construction  to  be  put  upon  a  deed  conveying  property  illegally  is,  that  the  clause  which  so 
conveys  it,  is  void  equally,  whether  it  be  by  statute  or  at  common  law.  This  is  the  rule, ex- 
cept in  cases  where  the  statute  declares  the  whole  inslruinenl  void. 

The  c;.ses  vhere  instruments  have  been  declared  good  in  part,  and  bad  as  to  the  residue,  seem 
to  have  been  bonds  which  were  varient  from  ihe  statute,  or  deeds  which  purport  to  convey 
lands,  some  portion  of  which  the  party  could  not  lawfully  convey. 

One  good  trust  inserted  in  an  illegal  instrument  of  assignment,  cannot  make  that  instrument  a 
valid  one. 

A  grantee,  who  v  jluntarily  becomes  a  pnrty  to  a  deed  which  is  fraudulent  in  part,  forfeits  bis 
right  to  claim  benefi.  from  another  part,  which  would  have  been  good. 

October  6.         The  bill  ill  this  case  was  filed  September  5,  1839,  and  states 
that  November  9,  1833,  complainant  and  Justus  Ingersoll,  one 


CASES  IN  CHANCERY.  11 '3 

of  the  defendants,  entered  into  a  co-partnership  in  the  trade  rirsif^ircui-. 
and  business  of  tanners,  curriers,  and  dealers  in  lealher;  liiat      ^^^^^ 
they  were  to  be  equally  interested,  and  devote  their  time  and    i„persoii. 
skill  to  the  management  of  the  business,  under  the  firm  and 
style  of  "Ingersoll  &  Kirby,"  and  were  to   share  the   profits 
equallv.     That  the  co-partnership  agreement  was  not  reduced 
to  writing;  was  to  continue  so  long  as  they  should  be  satisfied 
with  each  other. 

That  immediately  on  entering  into  the  co-partnership,  the 
firm  of  IngersoU  &  Ivirby  purchased  stock  in  trade  to  a  large 
amount;  that  they  purchased  out  the  business  of  a  firm  then 
trading  in  the  city  of  Detroit,  under  the  name  of  "Justus  In- 
gersoU &  Co.,"  and  undertook  to  pay  the  liabilities  of  said  firm, 
to  the  amount  of  the  slock  received  from  said  firm,  one  of 
which  was  a  debt  to  complainant,  of  about  $900.  That  at  the 
time  of  forming  the  co-partnership,  said  Justus  resided  at  Me- 
dina, in  the  state  of  New  York,  and  continued  to  reside  there 
until  September,  1838,  when  he  removed  to  Detroit;  tliat  du- 
ring his  residence  in  the  state  of  New  York,  said  Justus  did  not 
devote  his  time  to  the  business  of  said  firm,  but  was  exclusively 
engaged  in  conducting  and  carrying  on  his  own  private  busi- 
ness, for  his  own  exclusive  benefit.  That  complainant  resided 
at  Detroit,  where  the  business  of  said  firm  was  carried  on,  and 
devoted  his  whole  time  to  the  business  of  said  firm;  that  the 
business  of  said  firm  became  prosperous  and  lucrative,  and  was 
carried  on  without  any  material  disagreement,  until  about  the 
month  of  November,  1838,  when  some  difierence  of  opinion 
arose  as  to  the  mode  of  conducting  the  business,  and  the  said 
Justus  expressed  a  desire  to  close  the  said  co-partnership  busi- 
ness; that  complainant  expressed  his  willingness  to  dissolve 
the  co-partnership,  as  soon  as  the  business  of  the  firm  could  be 
placed  in  a  situation  to  secure  to  the  creditors  of  the  firm  the 
immediate  payment  of  their  debts.  That  immediately,  com- 
plainant dii-ected  the  whole  of  his  attention  to  the  payment  of 
the  liabilities  of  the  firm,  and  to  the  collection  of  the  out-stan- 
ding debts  due  to  the  firm;  that  the  liabilities  of  the  firm  had 
been  reduced,  during  ten  months  last  past,  about  $11,000. 


174  CASES  IN  CHANCERY. 

Firstcircnit.  Tliit  Complainant  and  said  Justus  had  fnm  time  lo  time,  aS 
Kirby  fast  as  thcv  could  without  prejudicing  the  rights  or  interests  of 
ingersoii.  the  Creditors  of  the  firm,  since  that  time,  divided  between  them 
certain  of  the  property  of  the  firm,  so  as  to  hold  the  same  in 
severalty,  and  not  as  partners;  that  among  the  property  so  set 
apart  to  complainant,  there  were  about  728  sides  of  upper 
leather,  of  about  the  value  of  $2,000.  That  there  was  assign- 
ed to  said  Justus  as  an  offset  for  the  property  so  assigned  to 
complainant,  about  540  hides,  of  about  the  same  value  as  those 
assigned  to  complainant;  that  said  Justus  took  possession  of 
the  property  so  assigned  to  him,  and  shipped  the  same  to  Me- 
dina, in  the  state  of  New  York;  that  complainant  took  posses- 
sion of  the  property  so  assigned  to  him,  and  packed  the  same 
away  apart  from  the  partnership  property,  but  leaving  the 
same  in  the  same  building  where  the  co-partnership  business  was 
carried  on,  and  in  a  building  contiguous  thereto.  That  at  va- 
rious other  times  there  was  other  divisions  of  the  property  of 
said  firm  between  complainant  and  said  Justus,  with  the  view 
and  intent  to  close  the  said  co-partnership  business  as  fast  as 
the  same  could  be  done  without  hazarding  the  interests  of  the 
creditors  or  materially  injuring  the  business  of  the  firm.  That 
the  property  so  set  aside  to  complainant  and  said  Justus,  by 
amicable  division,  was  not  charged  or  entered  against  either, 
on  the  books  of  the  firm.  That  August  28,  1839,  while  the 
business  of  the  firm  was  so  in  progress  of  final  settlement,  the 
•said  Justus  Ingersoll,  without  any  previous  consultation  with 
complainant,  and  without  complainant's  knowledge  or  consent, 
made  or  pretended  to  make  an  instrument  of  assignment  or 
indemnity  to  one  Nehemiah  Ingersoll,  and  in  which  assignment 
it  was,  among  other  things  set  forth,  that  complainant  and  said 
Justus  were  jointly  indebted  to  James  Abbott,  of  the  city  of 
Detroit,  for  rent,  accruing  on  a  ceartain  lease,  bearing  date 
April  11,  1836,  and  that  said  Nehemiah  was  liable  to  pay  the 
said  rent  by  reason  of  a  bond  signed  by  him  for  the  said  firm. 
And  that  it  was  further  set  forth  in  said  assignment,  that  said 
Nehemiah  was  liable  upon  a  certain  bond  bearing  date  Novem- 
bes  19,  18.35,  executed  by  him  to  the  Farmers'  and  Mechanics' 


CASES  liN  CHANCERY.  175 

bank  of  Michigan,  for  the  benefit  of  said  firm  of  IngcrsoU  &  f^'"<>^^"^^i'- 
Kirby,  in  the  penal  sum  of  ^20,000  00,  conditioned  to  pay  the  Kiny 
sum  of  $10,000  00,  or  the  amount  of  the  indebtedness  of  the  ingersou. 
said  firm  to  said  bank,  not  to  exceed  that  sum,  and  that  the 
present  indebtedness  of  the  firm  of  IngersoU  &  Kirby  to  the 
said  bank,  for  which  said  Nehemiah  was  Hable,  was  about 
$10,000  00.  That  said  Nehemiah  was  also  hable  as  endorser 
of  a  promissory  note  of  said  firm  for  the  sum  of  $2,000,  and 
that  said  firm  were  willing,  not  only  to  secure  and  indemnify 
the  said  Nehemiah,  &c.,  on  account  of  his  liability  on  the  bond, 
but  also  to  pay  him  the  $2,000  .-ind  lo  secure  to  all  other  ci  edi- 
tors of  said  firm  the  payment  of  their  just  debts,  out  of  the  mo- 
neys and  eflTccls  of  said  firm,  afier  such  indemnification  and 
payment  to  said  Nehemiah,  and  tor  the  purpose  of  such  indem- 
nification, the  said  Justus,  using  the  name  of  the  said  firm  of 
IngersoU  &  Kirby,  assigned  to  said  Nehemiah  the  stock  in 
trade,  or  the  greater  proportion  of  it,  amounting  in  value  to 
about  the  sum  of  $9,000,  and  notes  and  accounts  belonging  to 
said  firm  to  the  amount  of  about  $6,000,  and  in  and  by  said 
deed  of  assignment,  gave  said  Nehemiah  full  authority  to  sell 
and  dispose  of  all  the  said  property  and  collect  all  the  said 
debts  and  apply  the  proceeds  of  the  same  to  ihe  payment: 

1st.  Of  the  $2,000  due  to  him  as  endorser  of  said  note. 

2d.  To  pay  off  and  satisfy  any  debts  due  from  said  firm 
upon  which  the  said  Nehemiah  was  in  any  manner  bound  to 

pay;  and 

3d.  To  pay  and  satisfy  any  other  debt  or  debts  justly  due 
or  owino-  by  said  firm;  to  retain  out  of  the  moneys  collected, 
a  reasonable  sum  for  his  services,  and  to  pay  over  to  said  Jus- 
tus and  complainant,  the  residue,  &c. 

The  bill  states  that  said  Nehemiah  is  a  brother  of  said  Jus- 
tus, and  charges  that  said  Justus  was  largely  indebted,  indi- 
vidually, to  said  Nehemiah,  for  money  loaned  of  him,  and  that 
said  assignment  was  made  by  said  Justus  not  for  the  purpose 
of  securing  any  debt  owing  by  said  firm  of  IngersoU  &  Kirby 
to  said  Nehemiah,  or  for  securing  or  indemnifying  him  against 
any  debt  or  demand  owing  by  the  firm   for  which  said  Nehe- 


176  CASES  IN  CHANCERY. 

First  Circuit,  niiali  is  security;  that  said  iirm  was  in  good  credit  at  the  time 
j^ir,,y  of  making  the  assignment,  and  was  then  able  to  pay  all  its  lia- 
ingcrsoii.  bililies  and  obligations;  that  said  Nehemiah  had  been  the  en- 
dorser of  said  firm  during  the  whole  time  of  its  continuance, 
and  that  there  was  not  at  the  time  of  filing  the  bill  any  paper 
on  which  said  Nehemiah  was  liable,  except  that  which  is  held 
as  collateral  to  the  debts  of  said  firm;  that  said  Nehemiah  ne- 
ver became  liable  to  pay  any  sum  for  the  firm,  by  reason  of 
the  protest  for  non-payment  of  the  liabilities  of  said  firm;  that 
said  firm  are  not  indebted  to  the  Farmers'  and  Mechanics' 
bank  in  the  sum  of  $10,000,  but  that  their  whole  indebtedness 
to  said  bank  is  $0,700,  no  part  of  which  was  yet  due;  that 
since  said  assignment,  complainant  has  been  prevented  from 
attendinsj  to  the  business  of  said  firm,  and  when  complainant 
applied  to  examine  the  books  and  papers  of  the  firm,  he  was 
abruptly  refused  and  told  by  said  Justus  that  the  papers,  books, 
notes  and  accounts  of  the  firm  were  left  in  his,  the  said  Justus' 
charge  and  care  by  said  Nehemiah,  and  that  complainant  could 
have  no  access  to  them. 

The  bill  further  states  that  there  is  a  large  amount  of  pro- 
perty, consisting  of  leather,  hides  and  other  stock,  belonging 
to  said  firm,  which  is  not  mentioned  in  the  said  assignment, 
which  is  now  in  the  possession  of  said  Nehemiah  and  said 
Justus,  which  complainant  fears  will  be  wholly  lost  to  saiil 
firm  unless  some  person,  duly  authorized,  should  take  posses- 
sion of  the  same;  that  there  is  also  a  large  amount  of  notes 
and  accounts  due  to  the  firm,  wl.ich  are  not  assigned,  but  are 
in  the  possession  of  said  Nehemiah  and  said  Justus,  and  said 
Nehemiah  has  demanded  payment  of  the  same;  that  said  Jus- 
tus in  said  assignment,  has  recognized  a  claim  in  favor  of  said 
Nehemiah,  to  the  amount  of  82,000;  that  instead  of  the  same 
being  a  true  and  just  account,  said  Nehemiah  justly  owes  the 
said  firm  of  Ingersell  &  Kirby,  the  sum  of  $1,200;  that  im- 
mediately after  the  said  assignment,  said  Justus  caused  a  no- 
tice of  the  dissolution  of  the  co-partnership  to  be  published; 
that  some  of  the  stock  on  hand,  consists  of  hides,  now  in  the 
progress  of  tanning,  which  requires  the  constant  attention  of  a 


CASES  IN  CHANCERY.  177 

large  number  of  hands  to  fit  ihem  for  market,  &c.;  and  that  First  circuit. 
there  is  danger  of  the  property  of  said  firm  being  squandered       ^.^^^^ 
and  the  creditors  defrauded,  &c.;  charges  said  iXehemiah  to    ingerioii. 
be    irresponsible,    &c.,    and  that  he  is  disposing  of  the  pro- 
perty, &c. 

The  bill  prays  for  an  account;  for  an  injunction,  and  the  ap- 
pointment of  a  receiver.     Injunction  granted. 

The  answer  admits  the  co-partnership,  the  purchase  of  the 
stock,  &c.,  of  the  firm  of  J.  Ingcrsoll  &  Co.,  to  the  amount  of 
$15,000;  admits  the  indebtedness  of  the  firm  of  J..  Ingersoll  & 
Co.,  to  the  complainant  in  about  the  sum  of  6900,  and  that 
that  amount  was  credited  to  complainant  as  so  much  capital 
paid  in  at  the  time  of  entering  into  the  co-partnership;  states 
that  complainant  had  been  employed  as  clerk  and  agent  for 
the  firm  of  J,  Ingersoll  &  Co.,  and  in  consequence  of  inaccu- 
racies in  the  statement  of  the  affairs  and  inventory  of  the  pro- 
perty of  the  firm  of  J.  Ingersoll  &  Co.,  made  by  complainant, 
said  Justus,  (in  order  to  compromise  the  matter  and  enable 
the  firm  of  Ingersoll  &  Kirby  to  proceed  with  the  business,) 
was  obliged  to  pay  Rufus  Ingersoll  and  John  Baglcy,  (two  of 
the  members  of  the  firm  of  J.  Ingersoll  &  Co.,)  in  the  years 
1833-4,  the  sum  of  about  $3,G00  out  of  his  individual  funds. 
Admits  that  complainant  conducted  the  busines-*  of  the  firm  at 
Detroit;  states  that  complainant  made  all  the  sales,  received  all 
payments,  and  that  it  appeared  from  the  books  of  the  firm  up 
to  May  14,  1835,  that  payments  had  been  made  to  Rufus  In- 
gersoll and  John  Bngley,  to  the  amount  of  about  $7,790;  ad- 
mits that  said  Justus  resided  at  Medina,  in  the  state  of  New 
York,  up  to  183S,  as  stated  in  the  bill,  at  which  place  he  was 
engaged  in  attending  to  his  own  business;  but  slates  that  by 
the  partnerslu'p  agreement,  said  Justus  was  relieved  from  de- 
voting any  part  of  his  time  to  the  business  of  the  firm;  states 
that  the  firm  of  Ingersoll  &  Kirby  purchased  large  quantities 
of  hides  at  Detroit,  and  s(^nt  them  to  said  Justus  to  be  tanned 
at  his  establishment  at  Medina;  that  the  costs  and  charges  of 
said  Justus,  which  he  had  charged  against  the  said  firm,  for 
tanning  said  hides,  amounted  to  about  the  sum  of  $10,000; 

Vol.  I.  23 


178  CASES  IN  CHANCERY. 

First  Circuit,  states  that  during  the  eontinuraice  of  the  said  partnership,  said 
^^"^"X"^^  Justus  had  sent  from  his  establishment  at  Medina,  to  the  store 
ingersoii.  ^^  '■^^  ^^^^  ^^  Detroit,  large  quantities  of  leather,  oil,  and 
other  materials,  to  be  sold  at  and  used  in  and  about  the  busi- 
ness of  the  firm  of  Ingersoll  &  Kirby,  at  Detroit,  to  the 
amount  or  value  of  about  $8,000.  The  answer  further  states 
and  charges,  that  the  purchases  made  by  complainant  on  ac- 
count of  said  firm,  amounts  to  about  the  sum  of  $122,000; 
states  that  no  cash  book  was  kept  by  complainant,  and  that 
complainant,  was  extremely  negligent  in  keeping  the  books  of 
the  firm;  that  complainant  had  appropriated  a  large  amount  oi 
funds  of  the  firm  to  his  own  use,  without  giving  any  account 
therefor;  that  he  had  committed  gross  frauds  upon  the  rights 
of  said  Justus,  in  managing  the  afl^iiirs  of  said  firm;  that  some- 
time in  the  month  of  August,  1839,  said  Justus  declared  to 
complainant,  in  positive  terms,  that  he  should  make  an  assign- 
ment of  the  partnership  efl^ecls,  for  the  purpose  of  paying  and 
securing  the  debts  of  the  firm,  and  that  he  should  proceed  im- 
mediately to  dissolve  the  partnership,  to  which  complainant 
did  not  object;  that  August  27,  1839,  said  Justus,  in  the  name 
of  the  firm  of  Ingersoll  &  Kirby,  made,  executed  and  delivered 
the  assignment  referred  to  in  the  bill,  to  said  Nehemiah  In- 
gersoll, who  is  brother  to  said  Justus,  that  complainant  had 
frequently,  before  making  said  assignment,  expressed  his  wil- 
lingness that  said  Justus  should  sell  and  tranfer  all  his  interest 
to  said  Nehemiah,  and  that  he  would  be  fully  satisfied  with 
any  arrangement  which  said  Nehemiah  should  recommend  for 
the  final  settlement  and  adjustment  of  all  the  aflfairs  of  said 
firm;  admits  there  was  some  conversation  about  making  a  di- 
vision of  a  part  of  the  property  of  the  firm,  but  denies  that  any 
such  division  ever  was  made  as  is  set  up  in  the  bill;  that  it 
was  agreed  by  complainant  and  said  Justus,  that  said  Justus 
should  tan  all  the  raw  hides  which  should  be  sent  to  him  at 
his  establishment  at  Medina,  for  which  said  Justus  was  to  be 
allowed  a  reasonable  compensation  by  the  firm  of  Ingersoll  & 
Kirby;  that  it  was  known  and  approved  of  by  said  complain- 
ant, that  sraid  Nehemiah  was,  from  time  to  time,  during  several 


CASES  IN  CHANCE :iY.  179 

years,  advancing  money  to  said  Justus,  for  the  benefit  and  on  Firsicircuu. 
the  credit  of  the  firm  of  Ingcrsoll  &  Kirby,  which  was  used  ^^^j^^J^^"^ 
by  said  Justus  in  the  business  of  said  firm,  and  for  the  payment    i:,5ersoii. 
of  which,  the  faith  of  said  firm  was  pledged;  avers  that  the 
balance  due  from  the  firm  to  said  Nchemiah,  at  the  date  of  the 
assignment,  was  at  least  $1,G00,  wliich  said   firm  was  Icg.iljy 
and  equitably  bound  to  pay;  denies  that  said  Nehemiah  is  a 
debtor  to  the  said  firm;  states  that  said  Neheiniah  has  en- 
dorsed for  said,  firm,  since  its  commencement,  to  the  amount 
of  $60,000;  that  he  was,  at  the  time  of  the  assignment,  di- 
rectly liable  to  the  said  Farmers  and  Mechanics'  bank,  for  said 
firm,  to  the  amount  of  $6,700;  that  he  is  further  liable  for  the 
payment  of  rent  to  James  Abbott,  for  said  Justus  and  com- 
plainant; avers  that  the  assignment  was  made  for  the  purposes 
therein  expressed,  and  no  other,  and  that  it  was  made  after 
full  notice  by  said  Justus,  to  said  complainant,  of  his  intention 
to  make  an   assignment  of  the  partnership  property;  denies 
that  all  the  property  of  the  firm  is  not  mentioned  in  the  assign- 
ment; denies  that  the  firm  was  in  good  credit  at  the  time  of 
making  the  assignment.     The  answer  further  states  and  char- 
ges, that  complainant  has,   since  the  commencement  of  said 
partnership,  received  as  net  profits  arising  from  the  business 
of  said  firm,  the  sum  of  $73,000;  that  the  whole  amount  re- 
ceived by  said  Justus,  from  said  firm,  individually,  does  not 
exceed  the  sum  of  $20,000;  denies  that  said  Nehemiah  is  in- 
solvent; also  denies  all  fraud  in  making  the  assignment. 

The  complainant  now  moves  for  the  appointment  of  a  re- 
ceiver, and  the  defendants  move  for  a  dissolution  of  the  in- 
junction. 

Walker,  Porter  and  Goodwin,  for  complainant. 

1st.  As  to  the  power  of  one  partner  to  assign  partnership 
property.  (.S'ee  Gow  on  partnership,  1^,  and  note;  Colly er  on 
partnership,  217  and  note;  1,  Dessaus.  Rep.,  537;  4,  cMcCord 
Rep.,  519;  5,  Cranch, 'SOO;  4,  Day's  Rep.,  428;  4,  JVas.i., 
Cir.,  C.  Rep.,  232;  3,  Paige.  C.  Rep.,  523;  5,  Paige,  Rep., 
30.) 


180  CASES  IN  CHANCERY. 

Firstcircuit.      2d.  The  answer  shows  that  the  debt  due  Abbott  on  the 
girby      lease   was  not  a  partnersliip  debt,  the  lease  being  to   Justus 
ingersoii.   Ingcrsoll  and  Zebulon  Kirby,  and  therefore,  partnership  pro- 
perty could  not  be  assigned  to  pay  it. 

3d.  The  answer  discloses  the  fact  of  a  violation  of  the  in- 
junction by  the  defendants;  by  the  rule  laid  down  in  Daly  vs. 
Daly,  M.  S.  S.,  by  this  court  a  motion  to  dissolve  an  injunction 
will  not  be  entertained  until  the  party  violating  the  injunction 
shall  have  paid  in-to  court  a  sum  of  money  equal  in  amount  to 
the  property  disposed  of. 

4th.  This  violation  of  the  injunction  and  the  disposal  of  the 
partnership  property  would,  when  taken  with  tiie  other  cir- 
cumstances, seem  to  demand  a  receiver  to  protect  the  rights 
of  the  creditors  of  the  firm. 

Howard  and  Eraser,  for  defendants. 

J.  M.  Howard. 

It  is  admitted  by  the  pleadings,  that  complainant  and  J.  In- 
gersoii were,  at  the  time  of  the  assignment,  partners  in  trade, 
and  that  the  assignment  was  made  by  J.  Ingersoii  in  the  name 
of  the  firm. 

The  first  question,  therefore,  which  arises,  is  as  to  the  power 
of  Justus  Ingersoii  to  make  the  assignment,  irrespective  of  the 
fraud  charged  in  the  bill,  which  is  fully  denied  by  the  an- 
,        swer. 

The  very  relation  of  partners  implies  a  confidence  in  each 
other;  such  a  confidence  as  makes  each  partner  the  general 
atrent  of  the  others,  and  renders  his  contracts  in  their  name 
and  in  reference  to  the  partnership  effects,  the  contracts  of  all 
tlie  others.  In  all  simple  contracts  they  are  regarded  as  one 
contracting  party;  and  they  are  all  bound,  provided  the  con- 
tract has  reference  to  the  co-partnership;  Goio  o?i  part.,  53, 
54,  55;  and  such  has  been  the  law  since  the  time  oi'  James  the 
/.;  Jb.,  73  to  75. 

And  Lord  Mansfield  declared  that  each  partner  has  the 
power,  singly,  to  dispose  of  the  whole  of  the  partnership  efl^ects; 


CASES  IN  CHANCERY.  181 

and  this  results  from  the  principle  that  partners  are  joint  ten-^''^^^^'"""'^- 
ants;  one  joint   tenant  may  iavvfully  dispose   of  the   whole,      Kirby 
which  is  not  the  case  with  tenants  in  common.     Fox  vs.  Hum-    ingcrsoii. 
bui^g,  3,  Coup.,  445;  Barton   vs.    Wdliams,  7,    Eng.  Com.   L. 
Rej),   149;  Lam.   vs.  Dwant,   12,   J\Iass.   54.     (See  10  Peters, 
260.) 

With  regard  to  all  efTects  contributed,  manufactured  or  pur- 
chased to  be  sold  for  the  benefit  of  the  partners,  each  partner 
in  the  course  of  trade  has  an  absolute  right  to  dispose  of  the 
whole,  and  may  assign  it  by  way  of  pledge  or  security.  Wat- 
son on  part.,  67;  Pursnn  vs.  Honker,  3,  John  R.,  70,  71;  Mills 
vs.  Biirher,  4  Day,  R.,  425;  Harrison  vs.  S terry,  5,  Crunch, 
289;  and  the  sale  of  one  partner  is  the  sale  of  both;  and 
such  is  the  unity  of  right  and  interest,  that  one  partner  may 
enter  the  appearance  of  the  other  in  an  action  against  all. 
Goio.  on  Part..  79,  195,  and  ajypendix,  page  494;  7,  T.  R., 
108. 

The  case  o{  Dickinson  vs.  Legare,  1,  Dessaus.,  537,  is  the 
first  case  in  England  or  the  United  States,  in  which  the  prin- 
ciple has  been  denied;  but  it  should  be  remembered  that  it  was 
the  case  of  one  partner  making  an  assignment  while  a  prisoner 
of  war  in  the  enemy's  country  and  to  an  alien  enemy,  and  has 
not  been  sanctioned  by  any  other  decision,  but  overruled  in 
Robinson  vs.  Crowder,  4,  McCord,  518,  and  in  Egberts  vs. 
Woods,  3,   Paige,  523, 

The  only  point  decided  in  Havens  vs.  Hussey,  5,  Paige,  30,  is 
"that  one  partner  cannot,  without  the  consent  and  against  the 
known  wishes  of  his  co-partner,  execute  an  assignment  of  all 
the  partnership  effects  to  a  mere  trustee  for  the  benefit  of  the 
favorite  creditors  of  the  assignor."  The  case  at  bar,  differs 
greatly  from  that.  Here  the  assignment  is  made  directly  to  a 
creditor  of  the  firm.  The  answer  shows  that  the  firm  owe 
him  about  $1,600  00,  and  denies  that  the  assignment  was 
made  against  the  known  wishes  of  the  complainant,  and  shows 
that  he  had  every  reason  to  suppose,  indeed  that  he  was  di- 
rectly notified,  that  it  would  be  made,  and  that  he  did  not  dis- 
sent.    Here  the  assignee  is  authorized  to  retain  the  amount  of 


182  CASES  IN  CHANCERY. 

Firatcircuit.  ^ig  debt;  and  being  responsible  as  indorser  for  the  firm  to  the 
""^2^  amount  of  the  $2,000  00   note,  and  bomid  by  his  obligation 
inJrL.    to  the  Farmers'  and  Mechanics'  bank  to  the  amount  of  •'$7,000 
00  for   their  benefit,  and  also  to  James  Abbott  for  the  pay- 
ment of  the  rent  of  the  premises  leased  by  him  to   IngersoU 
&  Kirby,  he  is  authorized,  in   order  to  secure  and  indemnify 
himself,  to  sell  the  property  assigned,  to  pay  the  debts  for 
which   he  is  liable,  and  to  indemnify  himself  out  of  the  pro- 
ceeds; after  which  payment  and  indemnification,  he  is  requir- 
ed to  account  to  the  partners  for  the  residue  of  the  fund. 

The  authorities  make  no  distinction  between  the  power  to 
sell  and  the  power  to  indemnify  by  pledging  the  property;^  and 
they  all  agree  that  it  is  the  right  of  one  to  appropriate  the 
joint  property  for  the  payment  or  security  of  the  debts  of  the 
firm,  in  such  manner  and  by  giving  such  preferences  as  he  may 
think  proper;  and  that  preferences  may  be  created,  even  if 
the  firm  is  insolvent.  3  Paige,  525,  520;  Waheman  vs.  Gra- 
ver, 4  Paige,  36;   1  Dallas,  248;  7  Mass.,  257. 

So  far  as  N.  IngersoU  has  an  interest  in  the  assignment,  he 
holds  the  property  as  a  personal  security,  with  full  authority 
to  sell   and  out  of  the.  proceeds  to  cancel  his  liabilities  for  the 
firm   having  first  retained  the  amount  due  himself,  and  the  re- 
sidue of  the   fund  is  to  be  applied  in  payment  of  any  debts 
which  the  firm  may  owe,  without  preference  of  one  creditor  to 
another.     There  is  no  inequality,  no  authority  to  compound  with 
the  creditors,  and  no   terms  whatever  requiring  'them  to  dis- 
charge their  debts  for  less  than  the  amount  legally  due;  were 
there  such  terms  the  assignment  would  be  void.     2  Binney's 
R.,  174;  4  Dallas'  R.,  76;  4  Paige,  38-9.      • 

The  decision  in  Havens  vs.  Hussey  conflicts  with  that  in  Har^ 
risen  vs.  Sterry ;  and  without  any  precedent  to  justify  it,  Chan- 
cellor Walworth  declares  an  assignment  by  one  partner  to  a 
trustee,  void  in  law  and  equity,  for  the  reason  that  it  is  no  part 
of  the  partnership  business  "  to  appoint  a  trustee  of  all  the 
partnership  effects  for  the  purpose  of  selling  and  distributing 
the  proceeds  among  the  creditors,  in  unequal  proportions.^'  But 
as  if  not  satisfied  with  this  decision,  the  same  learned  judge 


CASES  IN  CHANCERY.  183 

brings  this  question  again  into  doubt  in  the  case  of  J\fiUs  vs.  f 'f^t  circuu. 
Jlrgal,  0  Paige   588,  in  which  he  says,  "tlierc   may   be  5o???e       Kirby 
doubt  as  to  the  right  of  the  general  partner,  (it  was  a  special    ir.gersoii. 
partnership  under  the  New  York  statute.)  to  make  an  assign- 
ment of  all  the  partnership  cfTects  to   a   trustee,  for  any  pur- 
pose, without   the   express   or  implied   assent   of    the   special 
partner."     The  case  was,  however,  decided  on  other  grounds. 

But  the  law  presumes  the  assent  of  the  creditors  to  the 
trustee,  until  they  express  their  dissent,  and  their  rights  can- 
not, therefore,  be  disturbed.  DeForest  vs.  Bacon,  2  Conn.  R., 
633. 

The  question  then  arises,  can  the  security  which  was  placed 
in  the  hands  of  N.  IngersoU,  by  the  assignment,  be  wrested 
from  him  ^  or,  in  other  words,  docs  the  clause  constituting  him 
a  trustee,  (an  event  which,  by  the  way,  may  never  happen,) 
for  the  remaining  creditors,  vitiate  and  annul  the  whole  con- 
tract of  assignment? 

That  security  was  so  given,  in  pursuance  of  the  authority 
possessed  and  exercised  by  Justus  IngersoU  as  a  partner,  (^ee 
5  Paige,  31.) 

A.  D.  Fraser. 

It  is  competent  for  one  of  several  partners  '.-»  make  an  as- 
signment of  the  co-partnership  property.  Fox  vs.  Hanbury, 
Cowper,  445;  Bar  ion  vs.  Williams,  5  Barn.  ^  Aid.,  395;  Pier- 
son  vs.  Hooker,  3  Johns.  R.,  70;  Lylcs  vs.  Styles,  2  Wash.  C. 
C.  224;  Lamb  vs.  Durant,  12  Mass.,  54;  Phrpont  vs.  Gra- 
ham, 4  Wash,  a  C,  232;  Mills  vs.  Barbor,  4  Daifs  Rep.,  428; 
Harrison  vs.  Sterry,  5  Cranch,  269;  Robinson  vs.  Crowdcr,  4 
Mc Cord's  L.  12.,  519;  Egberts  vs.  Wood,  3  Paige,  517;  Cow 
on  part.,  51,  53,  54,  73,  74,  75,  79;  Appendix  Taylor's  case,  Coll. 
on  part.,  210,  217;    Watson  onpart.,  67. 

That  a  deed  may  be  good  in  part,  and  void  for  the  residue, 
is  the  common  law  doctrine.  United  States  vs.  Bradley,  10 
Peters,  243,  360;  Pigot's  case,  6  Coke  Rep.,  part  11,  27. 

The  Chancellor.     This  case  presents  the  broad  question 


184  CASES  IN  CHANCERY. 

Firstcircuit.  of  the  right  of  one  partner  to  make  an   assignment  of  all  the 

'-**"^^*^  partnership  effects,  without  the  consent  or^oncurrence  of  his 

^'^''■^      co-oartner,  who  is  on  the  spot,  and  acting  in  the  business  of  the 

Ingcrsoll.       '      t-  .11  *    J   4^ 

co-partnership.  Perhaps  no  question  has  been  presented  lo 
this  court,  of  greater  practical  importance,  than  the  present; 
and  it  has  been  considered  with  a  full  and  deep  conviction  of 
the  responsibility  imposed  upon  the  court  in  its  decision. 

The  authority  of  one  partner  to  make  such  an  assignment, 
if  sustained  in  the  present  case,  must  be  sustained  in  its  broad- 
est form.  The  two  partners  were  both,  at  the  time  of  the  as- 
signment, in  town,  and  attending  to  the  business  of  the  firm. 
The  complainant,  on  proceeding  to  the  usual  place  of  business, 
finds  the  brother  of  the  other  partner  in  possession,  and  is  in- 
formed that  an  assignment  of  all  the  partnership  eftecls  has 
been  made,  and  is  denied  all  access  to  the  books,  and  all  inter- 
ference with  the  property  or  business  of  the  firm. 

The  allegation  in  the  answer,  that  the  subject  of  an  assign- 
ment had  been  mentioned  to  the  complainant,  to  which  he 
made  no  objection,  cannot  aid  the  assignment.  It  is  not  pre- 
tended that,  at  the  time  of  actually  making  the  assignment,  he 
was  advised  of  it,  or  was  in  any  manner  consulted  as  to  either 
the  assignee,  the  terms  and  conditions  of  the  assignment,  or 
any  thing  else;  but  that  the  first  notice  to  him  was  the  infor- 
mation, that  he  no  longer  had  any  thing  to  do  with  the  part- 
nership property  or  business. 

Very  different  views  seem  to  have  been  entertained  upon 
this  subject,  and  it  has  become  necessary  to  examine  it  with 
care  and  attention. 

It  will  be  found  that  the  dicta  relied  on  to  sustain  the  pow- 
ers of  one  partner  to  make  such  an  assignment,  have  been 
thrown  out  under  special  circumstances,  and  that  the  reports, 
upon  a  careful  examination,  do  not  sustain  the  exercise  of  the 
power  in  cases  like  the  present.  The  elementary  writers,  Gow 
and  Collyer.  slate  the  rule  to  be,  that  one  partner  may  bind 
the  others  in  all  matters  within  the  scope  of  the  co-partnership, 
and  the  implied  authority  of  one  partner  to  bind  another,  is 
generally  limited  to  such  acts  as  are,  in  their  nature,  essential 


CASES  IN  CHAiNCERY.  185 

to  the  general  objects  of  the  co-partnership.     Does  this  rule  Firstcircuii. 
contemplate  the  authority  here  contended  for?  j^i^i.y 

Is  it  intended,  that  wiien  both  partners  arc  on  the  spot,  and  ingersou. 
where  no  difficulty  exists  in  consulting;  each  other  as  to  the 
assifrnee,  and  the  terms  and  conditions  of  the  assis^nment,  that, 
by  the  law  of  partnership,  they  arc  placed  in  such  a  position 
that  one  partner,  on  repairing  to  the  place  of  business,  may 
find  all  he  possesses,  together  with  the  books  and  accounts  of 
the  firm,  transferred  to  a  third  person,  placed  entirely  beyond 
his  reach,  himself  utterly  excluded,  and  the  business  of  the 
firm  ended  without  his  knowledge  or  assent?  This  cannot  be 
contemplated. 

Do  the  authorities  cited,  sustain  the  position  ?  The  case 
which  has  gone  as  far  as  any  other,  and  much  relied  on  in  the 
argument,  is  the  case  of  Harrison  vs.  Sternj,  5  Crunch,  289. 
In  that  case  the  question  did  not  turn  upon  this  point.  But  a 
question  was  raised  upon  the  validity  of  an  assignment  made 
by  one  partner. 

The  court  say  in  delivering  the  opinion:  "The  whole  com- 
mercial business  of  the  company  in  the  United  States  was  ne- 
cessarily committed  to  Robert  Bird,  the  onh/  partner  residing 
in  the  country.  He  had  the  command  of  their  funds  in  Ame- 
rica, and  could  collect  or  transfer  the  debts  due  to  them."  And 
it  is  manifest  from  the  case,  that  the  assignment  was  made  of 
a  portion  only  of  the  assets,  to  obtain  aid  in  carrying  on  the 
concern.  This  case,  from  the  entire  showing,  manifests  clear- 
ly, that  this  is  an  exception  rather  than  the  rule,  and  that  it 
was  made  under  special  circumstances;  and  such  will  be  iound 
to  be  the  case  in  2  Cowper,  445,  also  much  relied  upon.  In- 
deed, I  have  been  unable  to  find  any  case,  where  the  broad 
power  here  asserted,  has  been  sustained.  Chancellor  Wal- 
worth, it  is  said,  has  countenanced  this  principle  in  the  case  of 
Egbert  vs.  Woods,  3  Paige,  517;  and  it  is  unjustly,  I  think,  said, 
that  he  virtually  decreed  both  ways,  and  that  there  is  a  dis-. 
crepancy  between  the  above  case  and  that  of  Havens  vs.  IIus- 
sey,  5  Paige,  31. 

In  the  first  case  he  says:   "I  do  not  intend  to  express  an 

Vol.  I.  24 


186  CASES  IN  CHANCERY. 

Firstcircuit.  opinion  in  favor  of  the  validity  of  such  an  assignment  of  the 
^^^^^  partnership  effects  to  a  trustee,   by   one  partner,  against  the 
ingirL.    known  wishes  of  iiis  co-partner,  and  in  fraud  of  his  right,  to 
participate  in  the  distribution  of  the  partnership  funds  among 
the  creditors,  or  in  the  decision  of  the  question  which  of  those 
creditors  should  have  a  preference  in  payment,   out  of  the  ef- 
fects of  an  insolvent  concern."     Showing  clearly,  that  after 
an  examination  of  the  whole   subject,  that  he  did  not  believe 
in  the  validity  of  such  an  assignment."     In  the  case  of  Havens 
vs.  Husscy,  he  says:   "Upon  the  most  deliberate  examination, 
he  was  satisfied  that  the  decision  of  the  Vice  Chancellor  was 
correct,  that  such  an  assignment  is  both   illegal  and  inequita- 
ble, and  cannot  be  sustained."     And  further  he  says:    "It  is 
no  part  of  the  ordinary  business  of  a  co-partnership  to  appoint 
a  trustee  of  all  the  partnership  effects,  for  the  purpose  of  sell- 
ing and  distributing  the  proceeds  among  the  creditors,  in  une- 
qual proportions.     And  no  such  authority  can  be  implied.    On 
tlie  contrary,   such   an   exercise  of  power,  by  one  of  the  firm 
without  the   consent  of  the  other,  is,  in  most  cases,  a  virtual 
dissolution  of  the  co-partnership,  as  it  renders  it  impossible  for 
the  firm  to  continue  its  business. 

From  a  review  of  all  the  cases,  it  is  clear  that  this  power, 
if  sustained  at  all,  must  be  sustained  upon  the  implied  authori- 
ty for  that  purpose  from  his  co-partner,  resulting  from  the  na- 
ture of  the  contract  of  co-partnership.     There  is  no  such  im- 
plied power.     The  authority  impliedly  vested  by  each  partner 
in  the  other,  is  for  the  purpose  of  carrying  on  the  concern,  and 
not  for  the  purpose  of  breaking  it  up  and  destroying  it.     One 
partner  does  not,  by  any  implication,  confer  a  power  upon  his 
co-partner,  of  divesting  him  of  all  interest  in,  or  authority  over, 
the  concern.     The  elementary  -writers  upon   the  subject,  do 
not  sustain  this  position.     The  adjudged  cases,  when  carefully 
examined,  do  not  sustain  it;  and,  assuredly,  it  is  not  sustained 
by  the  nmson  of  the  thing,  or  the  dictates  of  justice.     Every 
consideration  of  public  policy  or  commercial  convenience,  is 
against  it.     The  result  to  which  I  have  arrived  is,  that  a  part- 


CASES  IN  CHANCERY.  187 

ner  may  transfer  a  portion  of  the  assets  or  obligations,  for  the  Firstcircuit. 
purpose  of  paying  or  securing  debts,  or  to  raise  means  to  car-  ^^"^^j^"^^ 
ry  on  the  concern;  but  that  the  powci-   h<?rR  asserted,  of  di-    ingerBoii. 
vesting  entirely  one  partner  of  his  interest,  appointing  a  irua- 
tee  for  both,    and  breaking  up  the  concern,  is  not  one  of  the 
powers  either  contemplated  or  implied  by  the  contract  co-part- 
nership; and  it  is  best  that  it  should  be  so.     Else,  who  could, 
with  safety,  enter  into  such  a  connection.     On  the  other  hand, 
if  partners  cannot  agree,  and  one  partner  is  violating  his  duty 
or  endangering   the   rights  of  the  other,   the  remedy  is  plain 
and  adequate. 

This  assignment  is  partly  for  the  purpose  of  securing  the 
debts  and  liabilities  of  the  firm  to  the  assignee,  as  well  as  for 
the  purpose  of  making  him  a  general  trustee  for  the  firm.  It 
was  urged  at  the  hearing,  that"  if  the  assignment  was  void  in 
other  respects,  it  must  be  carried  into  eflect  thus  far.  I  am 
inclined  to  the  opinion,  that  effect  may  be  given  to  the  assign- 
ment to  that  extent,  but  it  is  not  now  necessary  to  decide  this 
question. 

From  the  views  I  have  taken  of  this  case,  it  must  result  in 
the  appointment  of  a  receiver,  and  the  application  of  the  as- 
sets must  be  under  the  direction  of  the  court. 

There  are  other  considerations  which  render  the  appoint- 
ment of  a  receiver  appropi-iate  in  this  case.  It  is  contempla- 
ted by  the  assignment,  to  secure  the  assignee  from  his  liability 
for  the  payment  of  money  due  upon  a  lease  having  some  twen- 
ty-five years  to  run,  and  clearly  not  within  the  scope  of  the 
partnership. 

The  amount  of  the  indebtedness  of  the  firm  to  the  assignee, 
is  a  disputed  one.  It  will  follow  then,  that. a  receiver  must  be 
appointed,  and  the  assignee  directed  to  deliver  over  to  such 
receiver  the  partnership  property  and  eflects,  and  account  with 
the  receiver  for  whatever  shall  have  come  to  his  hands  by  vir- 
tue of  such  assignment. 

The  counsel  for  the  defendants  requested  to  be  further  heard 
upon  the  question  of  the  appointment  of  a  receiver;  which  re- 
quest was  granted. 


188  CASES  IN  CHANCERY 

Firstcircuit.      A.  D.  Fraser,  for  defendants. 


vs. 
Insersoll 


^fs!  The  court  having  decided  that  the  assignments  ought  to  be 

set  aside,  by  the  bill  in  this  case,  is  valid  as  respects  the  interest 
of  the  defendant.  Nehemiah  Ingersoll,  but  inoperative  as  to  all 
others.  The  complainant  now  insists  that  the  property  em- 
braced in  the  assignment,  must  go  into  the  hands  of  a  receiver. 
This  position  is  denied  by  the  assignee,'  who  insists  that  it  ne- 
cessarily follows  from  the  decision  which  has  already  been 
made,  that  the  trust  shall  remam  with  him,  on  whom  the  as- 
signment conferred  it.  He  submits  that  he  cannot  be  deprived 
of  it,  unless  the  case  falls  within  some  of  the  exceptions  to  be 
found  in  adjudged  cases  upon  this  subject.  The  assignee  con- 
tends that  the  only  legal  operation  and  effect  of  the  decision 
which  has  been  made,  must  be  to  render  inoperative  that  part 
of  the  assignment  which  purports  to  create  a  trust  for  the 
benefit  of  those  mentioned  in  the  assignment,  other  than  the 
assignee.  If  the  assignment  is  good  for  any  beneficial  purpose, 
the  assignee  cannot  be  divested  of  the  power  and  rights  con- 
ferred on  him  by  it,  unless  the  fund  be  in  danger,  or  some 
other  strong  ground  urged  which  would  justify  the  appoint- 
ment of  a  receiver;  and  while  he  acts  as  assignee,  he  is  as 
much  under  the  control  and  direction  of  this  court,  as  a  re- 
ceiver would  be,  and  bound  to  execute  the  trust,  modified, 
limited   and   qualified,  as  the  court  have  already  decided  it 

must  be. 

Under  these  circumstances,  it  is  contented  that  a  receiver 
will  not  be  appointed  unless  the  property  is  shown  to  be  in 
dancrer;  that  the  trustee  is  irresponsible,  or  where  the  plain- 
tiff's rio-ht  is  not  shown  to  be  clear;  must  show  some  evil  ac- 
tually existing  or  danger  to  the  property,  or  a  strong  special  case 
of  fraud.  Edw.  on  Receivers,  2  Ch.;  WilUs  vs.  Corlis,  2  Edw., 
286,  287,  288;  Orphan  Jlsylum  vs.  McCartee,  1  HopL,  429; 
Verplanck  vs.  Caiiies,  1  J.  C.  R..  58;  Hugonin  vs.  Baseley, 
13  Fes.,  105;  Middleton  vs.  DodsioelL  Id.,  266;  Lloyd  vs.  Pas- 
singham,  16  Ves.,  59. 

The  assignee  is  subject  to  the  control  and  direction  of  this 


CASES  IN  CHANCERY.  189 

court,  as  much  as  a  receiver  would  be.     Shafl$herry  vs.  .^r- First  circuit. 

roicsmit/i,   7    Ves.,  486,  487;  Beaufoi^t  vs.   Berty,  1  P.    JVms. 

702. 

II.  N.  Wakler,  in  reply. 

The  complainant  insists  in  (his  cause,  that  the  deed  of  as- 
signment is  void,  ab  initio,  for  the  following  reasons. 

1.  That  one  partner  cannot  assign  the  partnership  goods 
without  the  assent  of  his  co-partner.  This  position  having,  as 
a  general  rule,  already  been  settled  by  this  court,  it  is  unne- 
cessary to  say  any  thing  ui)on  it.  The  case  of  Havens  vs. 
Husseij,  5  Paige  C/i.  R.,  30,  lays  down  the  true  doctrine. 

2.  But  this  case  is  sought  to  be  taken  out  of  the  rule  on  the 
ground  that  the  deed  of  assignment  constituted  Nehemiah  In- 
gersoll,  the  brother,  a  trustee  as  respects  all  the  creditors  of 
the  firm  of  Ingersoll  &  Kirby,  but  himself,  and  that  he  acquired 
an  individual  right  to  the  goods  assigned,  they  having  been 
assigned  to  him  to  secure  the  amount  due  him  from  the  firm, 
and  his  liability  for  them  as  an  endorser. 

The  decision  that  one  partner  cannot  assign  the  partnership 
effects,  seems  to  settle  this  question.  The  doctrine  contended 
for  by  the  counsel  opposed,  is  that  the  deed  may  be  good  in  part 
and  bad  in  part.  This  doctrine  does  not  apply  in  this  case.  It 
is  only  applicable  where  there  are  different  clauses  or  covenants 
in  a  deed  which  do  not  depend  on  each  other.  But  where  the 
deed  is  entire,  and  the  several  clauses  depend  upon  each  other, 
then  the  distinction  ceases,  and  it  must  either  be  good  for  the 
whole  or  bad  for  the  whole.      1  Shej).  Touchstone,  70,  71. 

It  is  a  necessary  requisite  that  the  person  making  the  deed, 
be  able  to  contract.  This  is  not  the  case  here.  Havens  vs. 
Hussey,  5  Paige  Ch.  R.,  30;  1  Shep.  Touchstone,  54. 

It  is  a  well  established  rule  in  courts  of  equity,  that  interests 
of  third  persons  gained  by  the  fraud,  imposition,  or  even  un- 
due influence  over  others,  cannot  be  held  by  them.  The  in- 
terest of  the  assignee  here,  if  he  has  any,  has  been  gained  by 
the  fraud  of  Justus  Ingersoll.  Hugonin  vs.  Baseley,  14  Ves., 
273,  289;    Bridgeman  vs.    Green,    Wilmot,   64;   Hildreth   vs. 


190  CASES  IN  CHANCERY. 

Firstcircuit.  Sands,  2  John.,  Chan.  Report,  35,  42;   Shephci-cVs  Touchstone, 
^■''"'""^  QQ,  G7. 

Kirby  ' 

^^-  In  cases  of  alledged  fraud,  the  answer  of  the  party  is  not  to 

be  relied  upon  as  to  any  advances,  but  positive  proof  is  re- 
quired.    3  P.  Wms.  R.,  228;  2  Ves.,  516. 

In  the  case  of  Sands  et.  al.  vs.  Codwise  et.  ah,  4  John.  R., 
530,  the  court  said  that  no  right  can  be  deduced  from  an  act 
founded  in  actual  fraud.  The  cases  in  which  a  deed  is  set 
aside  on  terms,  is  not  at  all  analagous  to  this.     Page  599. 

The  CHA^"CELLOR.  Upon  a  former  occasion,  it  was  held 
that  the  assignment  in  question  could  not  be  sustained,  so  far 
as  it  purported  to  be  a  general  one,  to  a  trustee,  for  the  pay- 
ment of  his  own  debt,  in  the  first  instance,  and  also  as  a  gene- 
ral trustee  for  all  the  creditors.  It  was  then  said  that  it  would 
follow,  that  a  receiver  must  be  appointed. 

The  reasons  that  induced  the  court  to  come  to  that  conclu- 
sion, were  then  stated.  A  further  reason  is  urged,  that  it  ap- 
peared by  the  answer,  that  a  considerable  portion  of  the  pro- 
perty of  the  concern  had  been  sold  before  filing  the  answer, 
notwithstanding  the  injunction. 

On  that  occasion  the  court  remarked,  that  it  was  not  con- 
templated to  decide  the  question  whether  the  assignment  could 
be  sustained,  so  far  as  it  purported  to  constitute  a  security  to 
the  assignee,  he  being  a  creditor;  but  it  was  said  that  the  court 
was  inclined  to  the  opinion,  that  it  could  be  so  far  sustained, 
on  the  authority  of  the  case  in  10  Peters,  363.  The  counsel 
for  defendants  requested  to  be  further  heard,  on  the  question 
of  the  appointment  of  a  receiver,  and  it  has  also  been  urged, 
that  a  decision  upon  the  validity  of  the  assignment,  should  be 
now  entered;  so  that,  if  the  defendants  desire  to  enter  an  ap- 
peal, it  may  be  done,  and  a  decision  had  in  the  appellate  court. 
This  is  certainly  proper  and  desirable.  In  a  question  of  this 
importance,  both  in  regard  to  principle  and  amount,  every  pro- 
per facility  for  an  appeal  should  be  afforded.  This  has  com- 
pelled the  court  to  examine  this  question,  which,  as  it  was  not 
contemplated  then,  to  dispose  of  it  as  it  had  not  before  done. 
In  the  case  of  United  States  vs.  Bradley,  10  Peters,  363,  which 


CASES  li\  CHANCERY.  191 

was  a   case   arising  on  a   paymaster's  bond,  it  Avas  held,  that  ^"'f'^'*-"''''^"'^- 
when  the  covenants  and  conditions  are  severable,  that   bonds      Kiri.y 
and  other  deeds  may  be  good  in  part,  and  void  as  to  the  resi-    inser^ou. 
due.     In  Hyslop  vs.  Clarke,  14  Johns.  Rep.  464,  Van  Ness,  in 
giving  the  opinion  of  the  court,  says:  ''  The  better  opinion  seems 
to  be,  that  even  at  common  law,  a  deed  fraudulent  in  part,  is 
altogether  void."'     This  view  seems  to   have  been   sustained 
and  carried  out  in  the  subsequent  decisions  in  New  York. 

By  the  term  fraud,  it  should  be  remembered  that  the  legal 
intent  and  effect  of  the  acts  complained  of,  is  meant.  The  law 
has  a  standard  for  measuring  the  intent  of  parties,  and  de- 
clares an  illegal  act,  prejudicial  to  the  rights  of  others,  a  fraud 
upon  such  rights,  although  the  parties  deny  all  intention  of 
committing  a  fraud.      11  Wend.  224. 

The  principle  upon  which  assignments  of  this  kind,  have 
been  declared  void  is,  that  one  partner  has  no  authority  to 
make  a  general  assignment  of  the  partnership  effects,  in  fraud 
of  the  rights  of  his  co-partner,  to  participate  in  the  distribution 
of  the  partnership  effects  among  th'j  creditors.  Havens  vs. 
Hussey,  6  Paige,  31. 

The  implied  authority  of  one  co-partner  is,  that  he  may  per- 
form any  act  within  the  scope  of  the  co-partnership,  which 
may  be  necessary  to  carry  on  the  concern.  Under  tiiis  implied 
power,  it  has  been  held,  that  one  partner  may  assign  such  por- 
tion of  the  partnership  effects  as  may  be  necessary  in  payment 
of  a  debt,  or  to  secure  a  creditor.  But  this  is  a  general  assign- 
ment, and  if  sustained  at  all,  breaks  up  and  puts  an  end  to  the 
co-partnership.  If  sustained,  and  the  assignee  is  authorized  to 
go  on  and  close  up  the  affairs  of  the  concern,  does  it  not  ne- 
cessarily lead  to  all  the  consequences  intended  to  be  guarded 
against  in  the  decision  in  the  case  of  Havens  vs,  Hussey  ?  One 
partner,  by  selecting  a  creditor,  large  or  small,  as  the  assignee, 
may  eflfectually  put  the  other  partner  out  of  the  possession  of 
his  property,  and  end  the  business  without  the  knowledo-e  or 
assent  of  his  co-partner.  He  is  deprived  of  the  right  to  which 
the  decision  in  5  Paige,  31,  declares  he  is  entitled. 

The  preferred  creditor  has  been  selected  without  his  know- 


192  CASES  IN  CHANCERY. 

First  Circuit,  ledgc  01'  conscnt,  and  a  party  who  has  been  illegally  placed  in 
possession  of  the  entire  partnership  effects,  if  the  views  urged 
irK'ersoii.  ^7  ^'""^  coLinscl  of  the  defendants  are  sustained,  is  entitled  to 
the  custody,  and  has  the  right  to  settle  and  wind  up  the  con- 
cern. One  good  trust  could  always  be  inserted,  and  thus  the 
partner  would  do  indirectly  what  could  not  directly  be  done. 
Whatever  view  may  be  taken  of  the  question,  as  to  whether 
this  assignment  may  be  void  in  part  only,  or  in  toto,  it  seems 
to  me  inevitable,  that,  as  the  case  now  stands,  a  receiver  should 
be  appointed.  But,  as  it  is  urged  that  a  decision  be  now  en- 
tered upon  the  validity  of  the  assignment,  and  it  seems  but 
just  and  proper  that  it  should  be  done,  I  shall  do  so  according 
to  the  best  reflection  I  have  been  able  to  give  it. 

A  distinction  seems  to  have  been  taken,  in  some  of  the  cases, 
between  instruments  void  by  statute,  and  at  common  law. 

In  the  case  in  Peters,  cited  in  support  of  this  assignment,  it 
is  said,  quoting  the  opinion  of  Chief  Justice  Gibbs,  that  if  an 
act  be  prohibited,  the  construction  to  be  jiut  upon  a  deed  con- 
veying property  illegally,  is,  that  the  clause  which  so  conveys 
it,  is  void,  equally  whether  it  be  by  statute  or  at  common  law. 
This  is  undoubtedly  the  true  rule,  and  there  is  no  reason  for 
any  distinction,  except  where  the  statute  goes  further,  and  de- 
„  clares  the  whole  instrument  void.  The  cases  where  instru- 
ments  have  been  declared  good  in  part,  and  bad  as  to  the  resi- 
due, seem  to  have  been  bonds  which  wxre  variant  from  the 
statute,  or  deeds  which  purport  to  convey  lands,  some  portion 
of  which  the  party  could  not  lawfully  convey.  In  the  one 
case,  the  bond  may  be  valid  in  part  only.  The  rights  of  no 
one  are  interfered  with.  Effect  is  given  to  the  bond  so  far  as 
it  is  in  conformity  with  the  statute.  If  it  contains  other  con- 
ditions or  requirements,  they  are  declared  void. 

So  with  deeds.  The  grantor  may  have  title  to  nine  hundred 
out  of  a  thousand  acres  of  land,  and  may  have  no  right  to  con- 
vey the  residue.  Still,  it  would  be  unjust  to  deprive  the  grantee 
of  that  to  which  the  grantor  had  a  title,  and  by  giving  it  effect, 
jjrotanlo,  the  rights  of  no  one  are  violated. 

Is  it  so  here?     The  partner  has  been  deprived  of  all  control 


CASES  IN  CHANCERY.  193 

over,  or  voice  in  the  disposition  of  the  eflecls  of  the  co-part-  Firstcircuit. 
nership,  without  his  consent.  ../f 

Shall  eflect  be  given  to  tliis  proceeding?  Can  the  court  ingcrsoii. 
say,,  where  the  whole  eliects  are  mingled  together,  that  it  shall 
take  effect  as  to  certain  portions  of  the  property,  and  be  void 
as  to  the  residue?  One  good  trust  is  inserted,  but  that  cannot 
make  an  illegal  instrument  a  valid  one.  The  legal  and  illegal 
are  so  mixed  and  commingled,  that  if  assignments  of  this  cha- 
racter are  sustained  to  the  extent  asked,  they  may  as  well  be 
sustained  in  toto. 

A  grantee  who  voluntarily  becomes  a  party  to  a  deed  which 
is  fraudulent  in  part,  forfeits  his  right  to  claim  a  benefit  from 
another  part  that  would  otherwise  have  been  good.  14  John- 
son's Reports,  465.  Here  the  assignee  takes  a  general  assign- 
ment from  a  party  not  authorized  to  make  such  an  instrument, 
and  1  think  it  cannot  be  sustained. 

The  order  is,  that  the  assignment  be  set  aside  and  declared 
void,  and  that  it  be  referred  to  a  master  to  appoint  a  receiver; 
and  that  said  Nehemiah  IngersoU  deliver  over  to,  and  account 
with,  said  receiver,  for  whatever  shall  have  come  to  his  hands 
by  virtue  of  said  assignment. 


Vol.  I.  25 


194  CASES  IN  CHANCERY. 


Fay  vs.  The  Erie  and  Kalamazoo  Railroad  Bank, 

1840.         Where  an  individual  creditor  had  filed  his  bill  against  a  moneyed  corporation,  obtained  an  in- 
Beconil  Cir-       junction  and  the  appointment  of  a  receiver,  and  the  receiver  had  taltcn  upon  himself  the  trust, 
and  oilier  creditors  had  filed  their  claims,  it  was  held,  that  the  creditor  who  had  filed  his  bill. 


Fay 


obtained  the  injunction,  and  the  appointment  of  a  receiver,  was  not  entitled,  as  a  matter  of 


-vs.  right,  (upon  being  paid  his  demand,)  to  dissolve  the  injunction, dismiss  his  bill,  and  tlischarge 

Erie  and  ,. 

Kalamazoo        the  receiver. 

Bunk.  There  is  no  doubt  that  this  court  has  the  power,  in  such  case,  to  dissolve  the  injunction,  dis- 

charge the  receiver,  and  permit  tlie  party  to  dismiss  his  bill,  when  it  is  satisfied  that  the  inte- 
rest of  all  concerned  will  be  best  subserved  by  permitting  the  corporation  to  manage  its  own 
concerns. 
The  primary  object  of  proceeding  in  chancery  against  failing  corporations,  is  not  for  the  pur- 
pose of  dissolving  tlie  corporation,  but  to  protect  the  assets  for  the  benefit  of  creditors.  The 
power  to  decree  a  dissolution  of  the  corporation,  is  merely  incidental. 

It  is  the  duty  of  the  court  to  look  into  the  condition  of  the  corporation,  before  it  will  discharge 
the  receiver,  and  make  such  order,  either  absolute  or  conditional,  as  the  case  may  retjuire. 

This  was  an  application  on  the  part  of  the  complainant,  to 
dissolve  the  injunction  granted  in  this  case,  to  dismiss  the  bil}, 
and  discharge  the  receiver.  A  sufficient  statement  of  the 
facts  in  the  case,  will  be  found  in  the  opinion  of  the  Chancel- 
lor. 

Goodwin  and  Morey,  in  support  of  the  motion. 

George  Mills,  contra. 

The  Chancellor.  This  application  is  founded  upon  an  ac- 
knowledgment of  payment  by  the  creditor,  and  a  motion  on 
his  part,  to  dissolve  his  own  injunction,  and  discharge  the  re- 
ceiver. No  provision  is  made  for  the  payment  of  the  expen- 
ses incurred  by  the  receiver,  or  to  indemnify  him  against  lia- 
bilities. 

It  is  insisted  that  this  application  must  be  granted  as  a  mat- 
ter of  right,  and  that  the  complainant  and  defendant  having 
adjusted  the  debt  claimed  by  the  complainant,  that  no  other 
persons  have  any  interest  in  the  matter,  or  any  right  to  inter- 
pose any  objections  to  the  order  asked. 

If  no  rights,  on  the  part  of  other  creditors,  have  been  ac- 


CASES  IN  CHANCERY.  195 


Bank. 


quired  under  this  proccedinf^,  and  the  receiver  has  incurred  no  Second  cu- 
liabilities  to  other  creditors,  this  view  is  undoubtedly  correct,  ^.^-v-x^ 
To  ascertain  this,  it  becomes  necessary  to  resort  to  the  statu-       ^^'/ 
tory  enactments  upon  which  these  proceedings  arc  based.  Kai?.u"zoo 

The  act  of  June  21,  1837,  {Session  laws  of  1837,  page  307,) 
"which  is  the  first  act  bearing  upon  the  subject,  provides,  that 
proceedings  may  be  commenced  by  the  Attorney  General,  or 
by  any  creditor,  and  makes  no  distinction  in  the  mode  of  pro- 
ceeding,'^whether  the  suit  shall  have  been  instituted  by  either 
the  one  or  the  other. 

Section  five  of  the  same  act,  provides  that  the  receiver,  up- 
on his  appointment,  shall  be  vested,  as  trustee,  with  all  the  es- 
tate, real  and  personal.,  liabilities  and  securities,  of  such  cor- 
poration. 

The  act  of  April  15,  1839,  {Session  laivs,  page  94,)  further 
prescribes  and  defines  the  duties  and  liabilities  of  receivers. 
(^See  sections  11  and  17.) 

This  renders  it  necessary  to  examine  the  statute  prescribing 
the  powers,  duties,  and  obligations  of  assignees.  Revised  sta- 
tutes, page  606. 

The  first  section  provides,  that  all  assignees  are  declared  to 
be  trustees  of  the  estate  of  the  debtor,  in  relation  to  whose 
property  they  shall  be  appointed,  for  the  benefit  of  his  credi- 
tors. 

After  this  reference  to  the  various  provisions  of  the  statute, 
the  question  recurs,  may  an  individual  creditor,  after  having 
commenced  proceedings  under  the  statutes  before  referred  to, 
and  pursued  his  remedy  until  a  receiver  has  been  appointed, 
and  taken  upon  himself  the  trust,  and  until  other  creditors 
have  filed  their  claims,  and  still,  at  this  late  sta^e  of  the  pro- 
ceedings, upon  being  paid  his  particular  demand,  as  a  matter 
of  right,  dissolve  the  injunction,  dismiss  his  bill,  and  discharge 
•the  receiver,  without  any  right  or  duty,  on  the  part  of  the 
court,  to.protect  the  rights  of  the  other  creditors,  who  may 
have  filed  their  claims  with  him,  or  to  protect  and  save  harm- 
less the  receiver,  who  has  acted  under  its  authority  ?  I  thuik 
not. 


vs. 
Erie  and 
Kalamazoo 
Bank. 


196  CASES  IN  CHANCERY. 

second  cir-  The  statutes  bearing  upon  the  question,  it  is  true,  are  not 
^J^^C'^^  very  expUcit  or  satisfactory.  But,  from  the  examinations  I 
Fay  have  been  enabled  to  give  them,  I  cannot  resist  the  conclusion, 
that,  from  a  fair  construction  of  their  provisions,  their  object 
and  intent  is  not  solely  to  afford  a  remedy  to  the  individual 
creditor  to  collect  his  demand,  but  that  they  contemplate  also 
the  security  of  such  other  creditors  as  may  file  their  demands 
with  the  receiver,  and  thus,  so  far,  become  parties  to  the  pro- 
ceedings. 

This  view  necessarily  involves  another  question  :    Is  it  im- 
perative upon  the  court,  after  the  appointment  of  a  receiver, 
to  hold  jurisdiction  of  the  case,  and  require  the  receiver  to  pur- 
sue his  duties,  until  the  concern  is  wound  up  and  dissolved,  al- 
though the  party  complainant  in  the  suit,  is  satisfied,  and  de- 
clines further  to  prosecute,  and  when  the  proper  prosecuting 
officer  on  the  part  of  the  state,  is  satisfied  that  the  application 
of  this  severe   remedy   is   unnecessary;  and   if,  further,    the 
court  is  satisfied  that  the  interests  of  all  concerned  will  be  best 
subserved  by  permitting   the  corporation  to  manage  its  con- 
cerns, and  that  it  may  be  safely  done?     The  court  entertains 
no  doubt  that  it  is  vested  with  this  power.     The  primary  ob- 
ject of  proceedings  in  chancery,  against  a  failing  corporation, 
is  not  a  dissolution  of  its  charter,    for  a  violation,  but  to  pro- 
tect the  assets  for  the  benefit  of  the  creditors.     This  power  is 
merely  incidental.     This  court  having  jurisdiction  of  the  cause 
for  other  purposes,  the  legislature  has  also  conferred  the  power 
to  decree  a  dissolution  of  the  charter. 

But  this  is  the  proper  duly  of  a  court  of  law;  and  for  this 
purpose,  proceedings  may  be  instituted  at  any  time  in  the  com- 
mon law  courts,  for  any  violation  of  the  provisions  of  its  char- 
ter, by  a  corporation. 

The  conclusion,  then,  to  which  I  arrive  in  this  case,  is,  that 
it  is  the  duty  of  the  court  to  look  into  the  condition  and  cir- 
cumstances of  this  corporation,  and  to  make  such  order,  either 
absolute  or  conditional,  as  the  case  may  require,  upon  such 
showing  made  by  the  parties  who  press  this  motion. 


CASES  IN  CHANCERY.  197 


Charles  II.  Carroll  vs.  The  Farmers'  and  Mecha- 
nics' Bajvk  and  otliers. 

On  a  motion  to  dissolve  an  .'njimclioii  an   aflidavit  is  admissible,  which  goes  to  show  that  the  lf'40. 

^  ...         ,     ■   ■         •  •  ,   J       ■  FirPlCircuit. 

injunction  was  irregularly  issued,  or  that  the  officer  allowing  the  injunction  was  misled  and 

induced  to  grant  the  injunction  contrary  to  law. 

Carroll 

Where  the  bill  seeks  a  discovery  in  aid  of  proceedings  at  law,  the  rule  is,  that  the  complainant  ^'^ 

Farmers'  and 
ronst  charge  in  his  bill  that  the  facts  are  known  to  the  defendant  and  ought  to  be  disclosed  by  Mechanics' 

hi.n,  and  that  the  complainant  is  unalile  to  prove  tlicm  by  other  testimony  -,  and  it  must  be  af-  Bank. 

firmatively  stated  in   the  bill  that  the  facts   sought  to  be  discovered  arc  material  for  such 

purpose. 

The  statute  (R.  S.  374,  s.  91,)  is  positive  .ind  peremptory  that  no  injunction  sliall  be  granted  to 
restrain  proceedings  at  law,  when  a  cause  is  at  issue  without  filing  a  bond  in  such  sum  as  the 
officer  allowing  the  injunction  shall  prescribe. 

When  an  injunction  is  asked  to  stay  proceedings  at  law,  it  is  incumbent  upon  the  comphiinant 
to  show  in  his  bill  the  state  of  the  pleadings,  and  the  court  in  which  the  suit  is  pending,  in  or- 
der to  enable  the  olHcer  to  wlioni  the  application  is  made  for  the  allowance  of  the  injunction 
to  Judge  of  the  propriciy  ot  its  allowance  and  to  prescribe  the  terms  on  which  the  some  shall 
be  allowed. 

Courts  of  chancery  will  not  sustain  an  injunction  bUl  to  restrain  a  suit  or  proceeding  previously 
commenced  in  a  court  of  a  sister  state  or  in  any  of  the  federal  courts. 

The  bill  in  this  case  was  filed  to  rescind  a  contract  on  the  >iay2o. 
the  ground  of  false  and  fraudulent  representations,  and  for  re- 
payment of  money  paid.  &c.,  and  states  among  other  things 
that  complainant  purchased  of  Nehemiah  O.  Sargeant,  (since 
deceased,)  July  28,  183G,  certain  property  in  the  village  of 
Kent,  state  of  Michigan,  for  which  said  property  complainant 
agreed  to  pay  the  sum  of  $8S,000;  that  said  sum  of  -$83,000 
was  paid  and  received  as  follows:  for  $5,000  a  draft  or  check 
at  sight  01}  the  bank  of  Michigan  in  the  city  of  Detroit,  was 
given  to  said  Sargeant,  which  was  paid  to  him  on  presentation. 
A  draft  or  check  for  $18,000  payable  to  the  order  of  said  Sar- 
geant ninety  days  after  August  1,  1830,  at  ihe  Phoenix  bank, 
in  the  city  of  New  York;  and  for  the  remaining  $60,000  com- 
plainant executed  to  said  Sargeant  a  bond  in  the  penalty  of 
$120,000,  conditioned  to  pay  the  said  sum  of  $00,000  in  twelve 
annual  instalments  of  $5,000  each. 

The  bill  further  sets  forth  that  there  had  been  paid  upon  said 
purchase  by  complainant,  the  sum  due  at  the   limes  following, 


198  CASES  IN  CHANCERY. 

First  Circuit,  ^q  ^H;  jj-,  ^^^  moiith  of  December,  1837,  the  draft  on  the  bank 

Carroll     of  Michigan  of  $5,000;  in  the  month   of  February  following, 

Farmers'arid  the  sum  of  $5,216  00  on    the  bond;  December  28,  1836,  the 

Mechanics'  •  i  i  i         i  ^       r     r 

Bank.  sum  of  $4,942  44  was  paid  on  the  check  or  draft  for  $18,000. 

That  at  the  time  of  the  payments  aforesaid,  complainant  had 
not  discovered  the  falsity  of  many  of  the  material  parts  of  the 
representations  of  said  Sargeant,  and  was  ignorant  of  the  da- 
mage which  he  had  sustained  by  and  through  the  fraud  and 
deceit  of  said  Sargeant.  States  and  charges  that  said  check 
or  draft  for  $18,000,  was,  immediately  on  receiving  the  same 
by  said  Sargeant  from  complainant,  endorsed  by  said  Sargeant 
to  John  A.  Welles,  cashier  and  director  of  the  Farmers'  and 
Mechanics'  bank  of  Michigan,  and  that  said  Welles  received 
the  same.  Charges  that  said  Sargeant  was  largely  indebted 
to  the  said  Farmers'  and  Mechanics'  bank.  States  that  said 
bank,  or  the  officers  thereof,  received  said  check  at  first,  for 
collection,  and  that  they  had  no  interest  in  or  title  to  said  check 
or  draft  before  its  maturity.  States  that  a  suit  was  commen- 
ced on  the  check  or  draft  after  the  same  became  due  in  1838, 
by  said  Sargeant  against  complainant,  in  the  supreme  court  of 
the  state  of  New  York;  that  before  the  trial  said  Sargeant 
died  and  the  suit  abated.  States  "  that  since  the  death  of  said 
Sargeant  said  Farmer's  and  Mechanics'  bank  claim  to  be  the 
owners  and  holders  of  said  check  or  draft,  and  have  commen- 
ced and  threaten  to  prosecute  a  suit  thereon  for  their  own  be- 
nefit against  complainant."  Charges  that  said  Farmers'  and 
Mechanics'  bank  did  not  become  the  holders  and  owners  of  said 
check  or  draft  for  $18,000  before  its  maturity  for  a  valuable 
consideration  and  without  notice  of  the  equities  subsisting  be- 
tween said  Sargeant  and  comj)lainant.  States  '-that  the  facts 
of  the  case,  so  far  as  the  claims  of  the  Farmers'  and  Mecha- 
nics' bank  are  involved,  lie  especially  in  the  knowledge  of  the 
said  John  A.  Welles,  the  cashier  thereof;  '  "  that  a  discovery 
from  said  John  A.  Welles  of  the  various  matters  charged,  is 
necessary  for  the  enforcement  and  support  of  the  complainant's 
just  rights  in  the  premises,  &c. 


CASES  IN  CHANCERY.  199 

An  injunction  was  allowed  by  the  Hon.  C.  W.  Whipple,  one  f^'^tcircuir. 
of  the  associate  justices  of  the  supreme  court.  cnrroii 

r>. 
1  I  •         1  I        •     •  •  1        />   1     Farmers'  on  1 

A  motion  was  made   to  dissolve  the  iniunction  upon  the  fol-  iviMhanicb' 

-'  ^  Bank. 

lowing  affidavit. 

State  of  Michigan,  Wayne   County,  ss. 

John  A.  Welles,  of  the  city  of  Detroit,  in  the  county  and 
state  aforesaid,  one  of  the  defendants  in  the  above  entitled 
cause,  being  duly  sworn  according  to  law,  deposeth  and  saith, 
that  from  reading  the  bill  of  complaint  filed  in  this  cause,  he 
has  ascertained  that  the  president,  directors  and  company  of 
the  Farmers'  and  Mechanics'  bank  of  Michigan  and  this  de- 
ponent, are  made  parties  defendants  to  the  said  complainant's 
bill  of  complaint,  by  reason  or  on  account  of  a  certain  draft, 
bill  of  exchange  or  check  drawn  by  the  said  complainant  on 
the  Phoenix  bank  in  the  city  of  New  York,  for  the  sum  of 
eighteen  thousand  dollars,  which  said  check  or  draft  was  paya- 
ble to  the  order  of  Nehemiah  O.  Sargeant,  ninety  days  after 
the  first  day  of  August,  in  the  year  eighteen  hundred  and  thir- 
ty-six; and  this  deponent  further  saith,  that  the  said  check  was 
discounted  by  the  said  Farmers'  and  Mechanics'  bank  while 
this  deponent  was  present  and  acting  as  their  cashier,  that  the 
amount  thereof,  less  the  discount  for  the  time  the  said  draft  or 
check  had  to  run  before  maturity,  was  paid  to  Nehemiah  O. 
Sargeant  at  the  time  when  the  same  was  discounted. 

And  this  deponent  further  saith,  that  the  said  check  or  draft 
was  not  paid  at  maturity,  but  the  same  was  returned  to  said 
Farmers'  and  Mechanics'  bank  dishonored;  that  a  suit  has 
been  commenced  in  the  supreme  court  of  the  slate  of  New 
York  by  the  said  bank,  against  the  said  Charles  H.  Carroll  the 
complainant  in  this  suit,  for  the  amount  due  or  unpaid  on  the 
said  draft  or  check;  that  the  said  suit  was  put  at  issue  pre- 
vious to  the  first  day  of  November,  eighteen  hundred  and  thir- 
ty-nine; that  said  suit  so  pending  in  said  supreme  court  of  the 
state  of  New  York,  was  noticed  for  trial  on  or  about  the  ele- 
venth day  of  November,  eighteen  hundred  and  thirty-nine; 
that  previous  to  said  last  mentioned  day  the  defendant  in  said 


200  CASES  IN  CHANCERY. 

First  Circuit,  g^it  at  law,  (the  complainant  in  this  cause,)  filed  his  bill  of  cotn- 
carroii     plaint  in   the  court  of  chancery  in   and  for  the  said   state  of 
FarniM^'and  Ncw  York,  against  the   said  bank,  plaintiff  in  the  said  suit  at 
bank"'"^^     law,  and  Randall  S.  Rice,  administrator  of  the  estate  of  Nehe- 
miah  O.  Sargeant,  deceased,  and  obtained  from  said  court  of 
chancery  in   said  state,  an  injunction  restraining  the  proceed- 
ings of  said  bank  in  the  said  suit,  on  the  draft  or  check  afore- 
said, as  well  as  the  said  Rice,  administrator  of  said  Sargeant. 

And  this  deponent  further  saith,  that  he  examined  and  read 
the  said  complainants  bill  of  complaint  so  filed  in  the  court  ol 
chancery  for  the  state  of  New  York,  and  so  far  as  the  said  bill 
related  to  the  said  Farmers'  and  Mechanics'  bank,  it  was  for 
the  prevention  of  the  said  bank  from  the  collecting  the  said 
check,  and  the  same  allegations  in  substance  were  made 
against  the  said  bank  in  said  bill  as  ai'e  made  in  the  bill  of  com- 
plaint in  this  cause  against  this  deponent  and  the  said  banic, 
that  upon  the  said  injunction  so  granted  in  the  state  of  New 
York,  being  served  upon  the  attorney  of  the  said  bank,  the  said 
suit  pending  in  said  supreme  court  was  continued;  that  imme- 
diately thereafter,  or  as  soon  as  the  said  bank  could  do  so,  a 
full  answer  to  the  allegations  in  the  bill  of  complaint  filed  in 
said  court  of  chancery,  was  prepared  and  verified  by  the  affi- 
davit of  this  deponent;  that  upon  filing  the  answer  of  said 
bank,  a  motion  was  made  before  the  honorable  Reuben  H. 
Walworth,  chancellor  of  the  slate  of  New  York, -for  the  dis- 
solution of  the  injunction  previously  granted  in  said  state. 

And  this  deponent  further  saith,  that  the  motion  to  dissolve 
the  said  injunction  came  on  to  be  heard  before  the  Chancellor 
of  said  state  on  the  twenty-third  day  of  April,  now  last  past, 
whereupon  an  order  was  duly  made,  dissolving  said  injunction, 
as  will  more  fully  appear  by  reference  to  a  copy  of  said  order 
hereunto  annexed. 

And  this  deponent  further  saith,  the  said  suit  is  still  pending 
in  the  supreme  court  of  the  state  of  New  York,  on  said  check; 
that  the  defence  set  up  by  the  defendant  in  said  suit,  (the  com- 
plainant in  this  cause,)  is,  that  the  check  or  draft,  was  pur- 
chased by  the  said  bank  after  it  became  due,  or  that  it  was  ta- 


CASES  IN  CHANCERY.  201 

ken  in  payment  of  some  previous  indebtedness,  of  said  Nehe-  Firstcircuu. 
miah  O.  Sargeant,   to   the  said  baniv;  all  of  which  allejrations  ^-^^'^"''^ 
and  pretences  were  fully  and  explicitly  denied  in  the   answer  Farmers  and 
of  said  bank,  to  the  bill  of  complaint,  filed  in  the  court  of  chan-  uauk!""'''' 
eery  for  said  state  of  New  York. 

And  this  deponent  further  saith,  that  he  has  visited  the  state 
of  New  York  once  as  a  witness  in  said  cause,  pending  in  said 
supreme  court,  and  the  trial  was  prevented  by  said  injunction; 
that  he  has  recently  received  notice,  that  the  said  cause  is  no- 
ticed for  trial  on  the  first  Monday  of  June  next,  and  the  atten- 
dance of  this  deponent  is  requested  as  a  witness;  and  this  de- 
ponent saith  he  is  fully  and  particularly  acquainted  with  all 
the  facts  relative  to  the  purchasing  or  discounting  said  draft 
or  check,  by  said  bank. 

And  this  deponent  further  saith,  that  he  has  good  reason  to 
believe,  and  does  believe,  that  unless  the  said  bank  is  permit- 
ted to  proceed  in  said  suit  at  law  in  the  state  of  New  York,  at 
the  next  term  of  said  court,  or  unless  the  said  complainant  be 
compelled  to  give  security  in  this  court,  the  said  bank  will  suf- 
fer irreparable  injury. 

And  this  deponent  further  saith,  that  it  will  be  impossible  to 
procure  from  New  York,  such  papers,  or  copies  of  them,  as 
have  been  necessarily  forwarded  there  to  defend  said  suits,  as 
will  be  required  to  make  a  full  and  complete  answer  to  this 
bill  of  complaint,  in  time  to  move  ibr  the  dissolution  of  the  in- 
junction in  this  cause,  before  the  day  on  which  the  said  cause, 
now  pending  in  said  supreme  court,  is  noticed  for  trial.  And 
further  this  deponent  saith  not. 

JOHN  A.  WELLES. 

SvkTorn  to  and  subscribed  before  me,  tliis  14th  May,  A.  D., 
1840. 

HENRY  H.  BROWN, 
JsTotary  Public,  W.  C,  Mich. 

A  copy  of  the  order  of  the  court  of  chancery  of  the  state 
of  New  York,  dissolving  the  injunction  issued  upon  the  bill 
Vol.  L  26 


202  CASES  IN  CHANCERY. 

Firatcircuit.  filed  in  that  state  by  the  complain?ait,  is  attached  to  the  affida- 

CarroU 

MeXbc^s"'*      H.  N.  Walker,  in  support  of  the  motion. 

Bank. 

1.  Where  an  injunction  is  granted  to  stay  proceedings  at  law, 
it  is  proper  to  make  a  motion,  based  on  an  affidavit,  to  dissolve 
or  alter  the  terms  of  it.  1  JVawland's  Prac,  226;  2  Madd. 
Prac,  224',  6  Veseij,  109,  110;  2  Chan.  Cas.,  203;  2  John. 
Chan.,  140. 

2.  There  is  no  doubt  but  the  court  has  the  power  to  grant 
an  injunction  against  a  person's  proceeding  in  a  foreign  court. 
4  Bridg.  Digest,  323;  Eden  on  Inj.,  144;  5  Vescy,  27,  71;  5 
Mtidd.  Rep.  297,  309;  6  Madd.  Rep.,  16;  4  Bridg.  Dig.,  340. 
But  the  court  will  not,  as  a  matter  of  policy  and  courtesy,  re- 
strain the  proceeding  commenced  in  a  sister  state.  2  Paige 
Chan.  Rep.,  403,  404;  4  Cranch  R.,  179;  7  Cranch  R.,  278; 
2  Story's  Eq.  Com.,  186. 

3.  The  bill  in  this  case  is  defective.  The  statute  provides, 
that  a  bond  shall  be  given,  under  certain  circumstances,  and 
money  paid  into  court  under  others.  The  Ijill  should  state, 
then,  what  is  the  situation  of  the  suit  at  law,  so  as  to  enable 
the  Chancellor  or  judge  to  determine  what  order  to  make.  R. 
S.  Mich.,  374,  375. 

The  general  rule  is,  that  if  a  declaration  has  been  filed,  the 
plaintitf  at  law  will  be  permitted  to  proceed  to  execution. 
Hence  the  necessity  of  stating  the  precise  situation  of  the  suit. 
10  Vesnj,  450;  18  Vesey,  488;  1  .\ew.  Chan.,  216;  2  Madd. 
Prac,  220;  3  Paige  R.,  33. 

It  has  not  the  requisites  of  a  bill  of  discovery,  there  being 
no  averments  that  the  answer  is  wanted  in  evidence,  in  ano- 
ther court,  which  is  necessary.  Story's  Com.  Eq.  Plead.,  422; 
Mitford's  PL,  186;  2  Story's  Eq.  Com.,  710;  2  Joh?i.  Chan. 
Rep.,  547,  548;    Cooper's  Eq.  Plead.,  191;   2  Ves.,  451. 

4.  But,  conceding  the  point  that  the  bill  is  perfect  and  suffi- 
cient, the  injunction  was  improperly  issued  until  a  bond  was 
given,  in  accordance  with  the  statute.  2  R.  S.,  JV*.  ¥.,  188; 
R.  S.,  Mich.,  374.  It  will  be  observed  that  the  two  statutes  are 
'>Uke.     3  Paige,  395;  3  Paige,  33;  1  Hoffm.  Chan.  Prac,  85. 


liaiik. 


CASES  IN  CHANCERY. 
T.  RoMEYx,  contra. 

1.  The  afTuIavit  of  John  A.  Welles  is  inadmissible  on  this     *""7°" 
motion.     There  arc  but  two  ways  of  dissolving  an  iiijunction:  MJ-cliankt"^ 
upon  answer,  or  on  the  bill.     2  John.  Cli.  Rep.,  202;   1   Hoff- 
man's Pr.,  3G1;   1  Edw.,  24;  Eden  on  Inj.,  65. 

2.  The  affidavit,  if  received,  is  insufTicient.  0  Paige,  109; 
1  Paige,  427. 

3.  The  affidavit  of  the  defendant's  counsel,  is  a  sufficient  an- 
swer to  the  equity  of  the  motion. 

4.  The  complainant  should  have  reasonable  time  to  file  the 
bond.  The  court  can  exercise  a  discretion  in  this  matter.  1 
Paige,  427;' 2  Jolm.  Cli.  Rep.,  202,  203,  227. 

The  Chanckllor.  A  preliminary  question  is  made,  as  to 
the  reception  of  the  affidavit  of  John  A.  Welles.  So  far  as 
the  affidavit  shows  that  the  injunction  was  irregularly  issued, 
or  that  the  officer  allowing  the  injunction  has  been  misled,  and 
induced  to  grant  an  injunction  contrary  to  law,  the  affidavit  is 
admissible. 

2.  As  to  want  of  equity  in  the  bill.  The  bill  alledges,  that 
an  answer  from  said  John  A.  Welles,  is  necessary  for  the  en- 
forcement and  support  of  the  complainant's  rights  in  the  pre- 
mises. 

The  rule  is,  that  the  complainant  shall  charge  in  his  bill,  that 
the  facts  are  known  to  the  defendant,  and  ought  to  be  disclosed 
by  him,  and  that  the  complainant  is  unable  to  prove  them  by- 
other  testimony,  and  when  the  facts  are  denied,  to  assist  a  court 
of  law  in  the  progress  of  a  cause,  it  should  be  affirmatively 
slated  in  the  bill  that  they  are  wanted  for  such  purpose.  Brown 
vs.  Swann,  10  Peters'  R.,  502. 

If  this  be  substantially  the  true  rule,  of  which  there  can  be 
no  doubt,  the  bill  is  insufficient  to  sustain  the  injunction  to  the 
full  extent  in  which  it  was  allowed. 

The  bill  alledges  various  and  complicated  transactions,  and 
this  allegation  would  be  equally  true,  whether  the  discovery 
from  Welles  was  necessary,  either  in  relation  to  original  nego- 


Mechanics' 
Bunk 


204  CASES  IN  CHANCERY. 

Firstcircuit.  ciation  with  Sargeant,  or  in  relation  to  the  draft  upon  which  a 
^-^^-^'^^  suit  is  pending.  It  is  not  stated  that  the  discovery  is  necessa- 
^    "■"•      ^  rv  to  aid  the  defence  at  law,  or  that  they  are  unable  to  prove 

Farmers  and  ■«  j     ••"   "'  ; 

the  subject  matter  of  that  defence  by  other  testimony. 

R.  S.,  Sec.  91.  374,  is  positive  and  peremptory,  that  no 
injunction  shall  be  granted  to  restrain  proceedings  at  law, 
where  a  cause  is  at  issue,  without  filing  a  bond  in  such  sum  as 
the  officer  allowing  the  injunction,  shall  prescribe,  &c. 

The  bill  alledges  merely,  that  the  Farmers'  and  Mechanics' 
bank  have  commenced,  and  threaten  to  prosecute  a  suit  upon 
a  certain  draft,  mentioned  in  the  bill,  given  by  the  complainant 
to  N.  O.  Sargeant,  now  deceased,  without  alledgingthe  court 
in  which  such  suit  is  pending,  or  whether  the  suit  is  at  issue 
or  not. 

It  is  urged  that,  as  the  statute  is  imperative  upon  the  officer 
allowing  the  injunction,  it  is  incumbent  upon  the  complainant, 
in  his  bill,  to  show  the  state  of  the  pleadings,  and  the  court  in 
which  such  suit  is  pending,  in  order  to  enable  the  officer,  to 
whom  the  bill  may  be  presented  for  the  allowance  of  the  in- 
junction, to  judge  of  the  propriety  of  lis  allowance,  and  if  al- 
lowed, to  prescribe  the  terms,  in  accordance  with  the  provi- 
sions of  the  statute.  This  ground,  I  deem  to  be  well  taken. 
It  has  been  repeatedly  decided,  that  courts  of  chancery  will 
not  sustain  an  injunction  bill,  to  restrain  a  suit  or  proceeding 
previously  commenced  in  a  court  of  a  sister  state,  or  in  any  of 
the  federal  courts.  2  Paige,  404;  4  Cranch,  179.  For  aught 
that  appears,  this  suit  may  be  pending  in  one  of  the  federal 
courts,  or  in  the  court  of  a  sister  state.  It  may  be  at  issue, 
or  even  in  judgment,  in  one  of  those  courts.  As  the  statute 
requires,  peremptorily,  certain  things  to  be  done  where  a  cause 
is  at  issue,  it  seems  necessarily  to  follow,  that  the  party  should, 
when  he  states  that  a  suit  is  pending,  show  the  condition  of 
that  suit,  in  order  to  enable  the  officer  allowing  the  writ,  to 
judge  of,  and  to  direct  the  necessary  conditions. 

To  establish  a  contrary  rule,  would  open  ihe  door  for  great 
abuses  of  the  process  of  the  court.  But  whether  this  omission 
may  be  technically  termed  an  irregularity  or  not,   when  it  is 


CASES  IN  CHANCERY.  205 

brought  to  the  luiowlcdge  of  the  court,  that   the   officer    al-  Firstcircuit. 
lowiiiir    the    injunction    lias    been    misled   by    such    omission, 

c?  J  .'  '        Carroll 

that  the  process  of  the  court  has  been  improperly  abused,  p.-irmcVs  and 
there  can  be  no  doubt  of  its  duty  to  afford  a  prompt  cor-  Bj",^k"""^' 
rection.  The  affidavit  discloses  the  fact,  that  the  injunc- 
tion allowed  in  this  cause,  purports  to  restrain  the  proceed- 
ings of  a  cause  not  only  at  issue,  but  pending  in  the  court 
of  another  state.  So  far,  the  affidavit  undoubtedly  may  be 
received.  This  being  apparent,  there  can  be  no  room  for  doubt 
as  to  the  duty  of  the  court,  so  far  to  modify  the  injunction  as 
to  divest  it  of  this  anomaly. 

In  the  case  of  Mead  vs.  Merriif,  2  Paige,  404,  the  Chancel- 
lor says:  "I  am  not  aware  that  any  court  of  equity  in  the 
Union  has  deliberately  decided  that  it  will  exercise  the  power, 
by  process  of  injunction,  of  restraining  proceedings  which  have 
been  previously  commenced  in  courts  of  another  state.  Not 
only  comity  but  public  policy  forbids  the  exercise  of  such  a 
power.  If  this  court  should  sustain  an  injunction  bill  to  re- 
strain proceedings  previously  commenced  in  a  sister  state,  the 
court  of  that  state  might  retaliate  upon  the  complainant,  who 
was  defendant  in  the  suit  there.  By  this  course  of  proceed- 
ing, the  courts  of  different  states  w^ould  indirectly  be  brought 
into  collision  with  each  other  in  regard  to  jurisdiction;  and  the 
rights  of  suitors  might  be  lost  sight  of  in  a  useless  struggle  for 
what  might  be  considered  the  legitimate  powers  and  rights  of 
courts."  He  further  says  that  these  principles  "  may  now  be 
considered  the  settled  law  of  this  country.  The  prompt  cor- 
rection of  this  error  is  called  for  by  a  decent  regard  for  the 
reputation  of  the  court,  and  of  the  judicial  proceedings  of  the 
state;  and  it  is  also  due  to  the  rights  of  the  parties.  The  in- 
junction must  be  dissolved. 

Injunction  dissolved. 


206  CASES  IN  CHANCERY 


Emily  Beaubien  et.  al,,  minors  vs.  Simon  Poupard, 

administrator. 

1340.         Where  the  day  appointed  for  an  administrator's  sale  is  rainy  and  ineiement,  and  but  few  per- 

First  Circuit,      gons  apjiear  und  bid,  and  the  bids  do  not  exceed  half  the  actual  value  of  the  property,  it  is  the 

^-^^^^y^^^      duty  of  the  administrator  to  adjourn  the  sale. 

Beaubien 

vs.  An  administrator  cannot  liecome  the  purchaser  at  a  sale  made  by  him,  as  administrator ;  and 

Foupard.  where  an  administrator  procured  his  brother-in-law  to  becon:e  the  purchaser,  and  immedi- 

ately afterwards  toolv  a  conveyance  of  the  premises  so  purchased,  from  liis  brollier-Ln-law,  the 
sale  v^aa  set  aside,  the  deeds  ordered  to  be  delivered  up  to  be  canceled  and  a  re-sale  ordered. 

Dec.  19.  rp^g  |_jjj[  ajie^ggg^  ji^  substaiicc,  that  Lambert  Beaubien,  was, 
in  his  lifetime,  seized  in  fee  simple,  of  a  certain  tract  of  land 
situated  in  the  county  of  Wayne,  described  in  the  bill  of  com- 
plaint; that  said  Lambert  died  in  the  month  of  September, 
1819,  intestate,  leaving  Jean  Bt.  Beaubien,  the  father  of  the 
complainant,  and  thirteen  other  children,  his  heirs  at  law; 
that  said  Jean  Bt.  Beaubien,  the  father  of  the  complainants,  as 
aforesaid,  died  in  the  month  of  December,  1828,  intestate, 
whereby  they  became  seized  and  possessed  of  the  undivided 
one-fourteenth  part  of  said  tract  of  land;  that  on  the  fifth  day 
of  October,  1829,  Cecil  Beaubien,  the  widow  of  said  Jean  Bt. 
Beaubien  and  mother  of  the  complainants,  presented  a  peti- 
tion to  the  judge  of  probate  of  Wayne  county,  praying  that 
administration  on  the  estate  of  said  Jean  Bt.  might  be  granted 
to  her;  but  before  any  action  was  had  on  said  petition,  the  de- 
fendant also  presented  an  application  to  said  judge  jfor  letters 
of  administration  on  the  estate  of  said  Jean  Bt.  Beaubien;  that 
April  23d,  1830,  the  said  defendant,  with  the  assent  of  said 
Cecil,  was  duly  appointed  administrator  on  the  estate  of 
said  Jean  Bt.  Beaubien,  and  took  upon  himself  that  trust, 
according  to  law;  that  an  inventory  of  the  estate  was  duly 
filed  in  the  office  of  said  judge  of  probate,  by  which  it  ap- 
peared that  the  real  estate  was  appraised  at  $800,  and  the 
personal  estate  at  $81  92;  that  on  or  about  the  6th  day  of 
December,  1830,  the  said  defendant  presented  to  said  judge 
of  probate  a  paper,  representing,   among  other  things,  that 


CASES  IN  CHANCERY.  207 

he  believed  the   estate   of  said   Jean  Bt.  was  indebted  in  the  F'«i<^''c«i«- 
sum  of   four  hundred  dollars,  and  that   the  said  estate  was    Ee»ui.ipn 
insolvent,  and  prayed   the   appointment  of  commissioners   to    Poup'ard. 
examine  the   claims   of  the   several   creditors   of  said  estate, 
which  prayer  was  granted,  and  the  commissioners  appointed, 
after  executing  the  trust   reposed  in  them,  made  their  report; 
by  which  it  appeared  that  all  the   claims  allowed  against  said 
estate  amounted  only  to  the  sum  of  $110  20;  that  on  the  17th 
day  of  October,  1831,  the   defendant,  as   administrator  afore- 
said, presented  a  further  petition  to  said  judge  of  probate,  sta- 
ting, among  other  things,  that  the  personal  estate  of  said  Jean 
Bt.  was  insufficient  to  pay  the  debts  due  by  said  Jean  Bt.,  at 
the  time  of  his  death,  and  the   charges  of  administration,   and 
praying  to  be  licensed  and  empowered  to  sell  so  much  of  the 
real  estate  of  which   the   said  Jean  Bt.  died   seized,  as  might 
be  sufficient  to  pay  said  debt  and  charges;  that  on  the  7lh  day 
of  November,  1831,  the  prayer  of  the   said  defendant,  admi- 
nistrator, as  aforesaid,  was  granted,  and  license  was  granted 
to  sell  certain  lots,  numbered  12,  140,  157,  142  and  113,  or  so 
much  thereof  as  might  be  necessary  for   the  purposes   afore- 
said; said  lots  having  been  duly  set  off  to  the   complainant  by 
the  circuit  court  of  said   county,  upon  a   partition   of  the  said 
real  estate  of  which  tiie  said  Lambert  died   seized;   that  on 
the  20th  day  of  October,  1832,  the  said  defendant,  as  adminis- 
trator, having  first  given  the  bond,  taken  the  oath,  &c.,  requi- 
red by  law,  did  sell  at  public  auction  the  said  lot  numbered  12, 
at  which  sale  the  same  was  struck  off  to  one  Louis  Beaubien, 
the  brother-in-law  of  said  defendant,  for  the  sum  of  8150. 

The  bill  charges,  that  although  the  said  lot  numbered  12, 
was  at  said  sale,  struck  oft"  to  said  Louis,  yet  the  said  pur- 
chase by  him  was  made  pursuant  to  an  understanding  or  ar- 
rangement, entered  into  previous  to  said  sale,  between  said 
defendant  and  said  Louis,  and  that  said  sale  was  to  accrue  to 
the  benefit  of  said  defendant. 

The  bill  avers,  that  on  the  30th  November,  1832,  the  said 
defendant,  in  his  capacity  as  administrator,  aforesaid,  did  exe- 
cute and  deliver,  in  due  form  of  law,  to  said  Louis,  a  deed  of 


208  CASES  IN  CHANCERY. 

First  Circuit,  gjjjj  Jq^  numbered  12,  and  that  on  the  sanne  day,  the  said  Louis 

Beaubien    and  his  Wife,  for  the  consideration  of  $150,  did   quit-claim   to 

Poupard.    Said  defendant  said  lot  No.  12;   and  further,  that  DecennberS, 

1832,  the  defendant  did  further  cause  both  of  said  deeds  to  be 

duly  recorded  at  his  own  cost  and  charges. 

The  bill  further  charges,  that  the  defendant  further  disre- 
garded the  rights  and  interests  of  the  complainants,  who  were 
infants,  by  not  offering  for  sale  some  one  or  more  of  the  other 
lots  he  was  authorized  to  make  sale  of,  instead  of  said  lot  No. 
12,  the  said  lot  being  a  water  lot  and  not  saleable,  while  the 
others  were  eligibly  situated  and  in  demand,  and  would  have 
sold  for  a  comparatively  much  higher  price. 

That  said  lot  No.  12  would  have  sold  for  a  much  greater 
sum,  but  for  the  fraudulent  conduct  of  the  defendant;  in  proof 
whereof,  the  complainants  aver,  that  the  said  defendant  con- 
cealed the  time  of  sale  fj-om  the  guardian  of  the  complainants, 
who  had  made  arrangements  to  prevent  a  sacrifice  of  their  in- 
terests, until  the  day  of  sale,  although  the  said  defendant  pro- 
mised to  give  said  guardian  timely  notice  thereof. 

That  after  said  lot  No.  12  was  advertised  for  sale,  the  said 
guardian  applied  to  the  defendant,  and  desired  to  be  informed 
in  due  season,  of  the  day  of  sale,  to  which  the  defendant  repli- 
ed to  said  guardian,  who  was  unlettered,  and  Unable  to  read  or 
write,  that  he  could  not  state  with  precision  the  time  of  sale, 
although  he  well  knew  he  had  appointed  a  day  for  that  purpose. 
That  the  guardian,  on  being  advised  by  the  defendant,  that 
the  said  sale  was  to  take  place  forthwith,  remonstrated  with 
the  defendant  for  his  neglect  in  not  giving  her  timely  notice, 
&c.,  and  urged  the  propriety  of  postponing  the  said  sale;  to 
which  the  defendant  replied,  that  said  sale  could  not  be  post- 
poned. 

That  there  were  but  few  bidders  at  said  sale,  and  that  the 
weather  was  inclement,  notwithstanding  which,  the  said  de- 
fendant refused  to  postpone  said  sale,  and  that  said  lot  sold  for 
about  one-half  its  real  value. 

The  bill  further  charges,  that  the  information  with  regard  to 
the  day  of  sale,  was  withheld  from  the  guardian  of  the  com- 


CASES  IN  CHANCERY.  209 

plainants,  by  the  defendant,  in  order  that  he  might  promote  his  F'^st circuit. 
own  interest;  avers  that  the  defendant  owned  a  lot  adjoining  '""^^^^^i^ 
said  lot  No.  12,  which  would  be  greatly  enhanced  by  obtaining    pou^pard. 
said  lot  No.  12. 

The  bill  further  states,  that  the  defendant,  before  said  sale, 
said  that  he  would  procure  some  person  to  bid  in  said  lot  for 
him,  as  he  could  not  legally  or  lawfully  purchase,  himself. 

The  answer  admits  that  Lambert  Beaubien  was,  in  his  life- 
time, seized  of  the  premises;  that  he  died  intestate,  leaving 
heirs,  as  stated  in  the  bill;  that  defendant,  Poupard,  was  ap- 
pointed administrator;  that  an  inventory  of  the  estate  was  filed 
in  the  office  of  the  judge  of  probate;  that  the  real  estate  was 
appraised  at  $800,  and  the  personal  estate,  at  $81  92.  That 
the  estate  was  represented  insolvent,  and  commissioners  were 
appointed,  as  stated  in  the  bill.  The  answer  further  admits 
the  petition  of  the  defendant,  as  administrator,  for  license  to 
sell  the  real  estate,  and  that  license  was  granted  to  sell  the 
same  by  the  judge  of  probate,  and  that  lot  No.  12,  was  sold 
October  20,  1832,  at  public  auction,  by  defendant,  as  adminis- 
trator, and  that  the  same  was  struck  off  to  Louis  Beaubien, 
the  brother-in-law  to  said  defendant,  for  the  sum  of  $150; 
states  that  said  Louis  Beaubien  was  the  highest  bidder,  and 
that  $150  dollars  was  the  highest  sum  bidden  therefor. 

The  answer  further  states,  that  among  many  other  citizens 
whom  defendant  solicited  and  urged  to  attend  said  sale,  with  a 
view  of  making  a  beneficial  sale  for  said  estate,  of  said  lot,  he 
spoke  to  said  Louis  Beaubien  to  attend  and  bid  for  the  same,  and 
that  defendant  told  the  said  Louis,  if  he  bid  on  said  lot,  and  it 
was  knocked  off  to  him,  this  defendant  would  take  it  from  him, 
but  defendant  and  the  said  Louis  both  distinctly  understood, 
that  if  it  was  knocked  down  to  the  said  Louis,  he  was  at  full 
and  perfect  liberty  to  keep  the  same,  at  the  price  bid  there- 
for; and  that  there  was  no  agreement,  or  any  public  or  pri- 
vate understanding  by  or  between  the  said  Louis  and  this  de- 
fendant, as  charged  in  said  bill,  that  he,  the  said  Louis,  was 
purchasing  the  same  for  defendant;  but  the  said  defendant 
so  spoke  to  the  said  Louis,  to  induce  him  to  bid  for  the  same, 
Vol.  L  27 


210  CASES  IN  CHANCERY. 

Firstcircuit.  ^^^^  ^\[\^  l^g  sole  view  of  making  the  lot  sell  for  a  fair  value. 

"^^^^^^j]]^  Denies  that  the  deed  from  defendant,  as  administrator  to  Louis 
poupard.  Beaubien,  of  said  lot  No.  12,  and  the  deed  from  said  Louis 
Beaubien  and  wife  to  defendant,  were  recorded  on  the  same 
day,  and  the  record  of  both  deeds  paid  for  by  defendant;  de- 
nies that  defendant  disregarded  the  rights  and  interests  of  the 
complainants,  by  not  offering  some  one  or  more  of  the  other 
lots,  instead  of  said  lot  No.  12.  The  answer  further  states^ 
that  the  defendant  "does  not  now  remember  whether,  on  the 
day  of  sale,  the  said  guardian,  or  any  other  person,  desired  a 
postponement  of  the  sale;"  denies  that  defendant  ever  told  the 
said  guardian,  that  said  sale  could  not  be  postponed;  admits 
defendant  owned  the  adjoining  lot,  in  the  right  of  his  wife; 
states  that  defendant  does  not  remember  that  he  ever  stated, 
before  the  sale,  that  he  would  procure  some  person  to  bid  in 
said  lot,  as  charged  in  the  bill;  denies  all  fraud,  &c. 

Whipple  and  Van  Dyke,  for  complainants. 

It  will  be  perceived  upon  reading  the  bill,  ihat  the  complain- 
ants are  minors,  and  claim  the  relief  prayed  for  upon  two  dis- 
tinct grounds: 

1.  That  the  defendant,  through  the  intervention  of  a  third 
party,  Louis  Beaubien,  purchased  the  lot  in  contest;  and, 

2.  Admitting  that  he  did  not  so  purchase,  yet,  that  the  de- 
fendant was  guilty  of  such  gross  misconduct  in  conducting  the 
sale,  as  would  warrant  the  interposition  of  a  court  of  equity. 

With  respect  to  the  first  ground  the  law  is  indisputable.  The 
defendant  was  administrator  on  the  estate  of  Jean  Bt.  Beau- 
7J. c.,76.  bien,  and  sustained  the  relation  of  an  agent,  not  only  with  re- 
spect to  the  creditors  of  the  estate,  but  the  heirs  at  law.  Sus- 
taining this  relationship,  the  question  first  presented  is,  could 
he  legally  become  the  purchaser  of  the  lot  in  question?  In 
support  of  the  negative  of  this  proposition,  the  reference  in 
the  margin  is  full  and  explicit,  and  renders  it  unnecessary  to 
multiply  authorities,  as  it  embodies  all  the  leading  decisions  in 
this  country  and  in  England,  on  the  subject. 

The  law  being  clear,  the  question  arises,  whether,  in  fact, 


CASES  IN  CHANCERY.  211 

the  defendant  did,  through  the  agency  of  Louis  Bcaubien,  pur-  Firitcircuit. 
chase  the  lot  dcsisrnatcd  in  the  bill  as  No.  12.     To  answer  this    „     .. 

o  Ueaunien 

question,  reference  must  be  had  to  the  pleadings  and  deposi-    poupiird. 
tions  in  the  cause. 

Upon  this  point  the  defendant  answers:  ''That  he  spoke  to 
said  Louis  Bcaubien,  to  attend  and  hid  for  the  same,  and  told 
said  Louis  if  he  hid  upon  said  lot,  and  it  was  knocked  off  to  him, 
he,  {the  defendant,)  would  take  it  from  him;  hut  the  defendant 
and  said  Louis  hoth  distinctly  icnderstood  that  if  it  teas  knocked 
down  to  the  said  Louis,  he  loas  at  full  and  peifect  liberty  to  keep 
the  same  at  the  price  bid  therefor ;  that  there  was  no  agreement, 
nor  any  public  or  private  understanding,  by  or  beticeen  the  said 
Louis  and  the  defendant,  that  the  said  Louis  was  purchasing  the 
same  for  the  defendant,  but  the  said  defendard  so  spoke  to  the 
said  Louis  to  induce  him  to  bid  for  the  same,  and  with  the  sole 
view  of  making  the  lot  sell  at  a  fair  value."  This  portion  of 
the  answer  is  drawn  up  with  apparent  skill,  and  would  seem  to 
rebut  the  allegation  in  the  bill  to  which  it  is  responsive;  but, 
upon  examination,  it  will  be  found  to  admit  sufficient  to  bring 
him  within  the  rule  of  law  above  referred  to. 

1.  The  defendant  admits  that  he  requested  Louis  Beaubien 
to  **  attend  and  bid.'' 

2.  That  he  told  the  said  Louis,  that  "  if  he  bid  on  said  lot, 
and  it  was  struck  oft"  to  him,  he,  (the  defendant,)  would  take 
it  from  him."' 

Here  is  a  clear  admission  of  the  allegation  in  the  bill,  that, 
by  some  agreement  or  understanding,  the  lot,  although  struck 
off  to  said  Louis,  was,  in  fact,  for  the  defendant;  and  the  de- 
fendant cannot  escape  from  the  effect  of  this  admission,  by 
statinf'  "  that  it  was  distinctly  understood,  that  if  it  was  knock- 
ed  down  to  him,  the  said  Louis,  he  \vas  at  full  and  perfect  liber- 
ty to  keep  the  same  at  the  price  bid  therefor;"  for,  no  legal 
proposition  is  better  settled  than  that  which  prohibits  a  party 
from  availing  himself  of  his  own  wrong.  Had  Louis  Beau- 
bien refused  to  convey  to  the  defendant,  he  certainly  could  not 
have  coerced  a  conveyance,'  for  he  would  have  been  met  with 
the  proposition  that  the  agreement  was  void,  as  being  against 


212  CASES  IN  CHANCERY. 

Firstcircuit.  the  poHcj  of  the  law.     It  is,  therefore,  a  correct  legal  inference 
^^■^'^^"^-^  drawn  by  the  defendant,  that  the  said  Louis  "iwas  at  full  and 

Beauljien  •'  ' 

Poulard    p^^'f^ct  liberty  to  keep  the  lot." 

But  the  defendant  further  states,  that  'Hhere  was  no  agree- 
ment, nor  public  or  private  understanding  between  him  and  the 
said  Louis,  that  he,  the  said  Louis,  was  purchasing  for  the  de- 
fendant." In  making  this  declaration,  the  defendant  seems  to 
have  forgotten  the  admission  previously  made,  "  that  if  he  {the 
said  Louis,)  bid  on  the  lot,  and  it  was  sti'uck  off  to  him,  he,  [the 
defendant,)  would  take  it  from  him."  This  last  admission  is 
sufficient  for  our  purpose,  showing  as  it  does,  most  conclusive- 
ly, that,  while  Louis  Beaubien  was  entirely  ignorant  of  the 
object  the  defendant  had  in  view,  in  getting  him  to  attend  the 
sale  and  bid  for  the  lot,  the  defendant's  purpose  was  to  pur- 
chase the  lot,  and  shield  himself  from  the  consequences  in  the 
manner  stated  in  the  bill.  It  is  not  believed  that  Beaubien  un- 
derstood the  defendant's  object  in  urging  him  to  bid,  or  he 
would  have  shrunk  from  doing  an  illegal  act,  the  effect  of  which 
might  work  injuriously  to  the  infant  heirs  of  his  deceased  bro- 
ther. 

It  may  be  contended  that  the  defendant's  denial  of  the  alle- 
gation in  question,  being  full  and  explicit,  it  must  be  taken  as 
true,  provided  it  is  not  rebutted  by  evidence.  The  general 
rule,  that  the  answer  is  to  be  received  as  true,  is  to  be  taken 
with  some  qualifications.  For  instance,  if  the  answer  is  con- 
tradictory, or  inconsistent,  (as  in  this  case;)  or  if  it  is  evasive, 
the  court  will  not  feel  bound  to  enforce  the  rule,  but  glwe  to 
the  answer  such  weight  as,  under  the  circumstances,  it  is  en- 
titled to.  Apply  these  principles  to  this  case:  the  defendant 
denies,  generally,  that  there  was  "an  understanding  or  agree- 
ment" between  him  and  Beaubien  respecting  the  purchase  of 
the  lot.  Now,  this  may  be  true,  and  would  be  conclusive,  if 
the  answer  did  not  further  admit,  thai  Beaubien  went  to  the 
sale  and  bid  at  his  special  request,  and  with  the  express  under- 
standing that  the  defendant  would  take  the  lot  from  him. 

It  is  very  clear,  even  from  the  answer,  that  the  defendant's 
object  was  to  purchase  the  lot,  but  in  such  manner  as  to  avoid 


CASES  IN  CHANCERY.  213 

the  legal  difficulty  in  his  way;  this  difficulty  he  was  aware  of,  Firstcircuit. 
and  the  mode  adopted  by  him   to  get  rid  of  it,  although  well    j;^^,^^^ 
planned,  cannot  avail  him  in  a  court  of  equity,  where  the  mo-    poupa,a. 
lives  and  intentions  of  a  party  are  looked  into  and  scanned,  es- 
pecially where  the  rights  and  interest  of  infant  heirs   arc  in- 
volved. 

But  the  complainants  are  not  driven  to  the  necessity  of  re- 
lying upon  the  answer  to  make  out  this  case.  The  testimony 
before  the  court,  establishes,  beyond  all  question,  the  motive 
and  intention  of  the  defendant,  in  getting  Beaubien  to  go  to 
the  sale  and  bid  for  the  lot. 

Cecil  Beaubien  testifies  "that  the  defendant  told  her,  that  if 
said  lot  No  12,  did  not  sell  for  too  high  a  price,  he,  (the  de- 
fendant,) would  purchase  it  himself,  and  that  this  conversation 
took  place  about  two  weeks  previous  to  the  advertisement  of 
sale,  as  she  believes." 

Joseph  Campau,  jr.,  states,  that  during  a  conversation  had 
between  the  defendant  and  Edward  Campau  touching  said  lot 
and  the  present  suit,  the  "  defendant  remarked  to  said  Campau, 
that  he  had  bought  the  lot,  and  considered  it  his." 

Edward  Campau  testifies  with  respect  to  the  conversation 
referred  to,  and  states  that  "the  defendant  remarked  tiiat  he 
had  bought  the  lot  in  question,   as  it  was  sold  cheap." 

Louis  Beaubien  testifies,  "  that  when  he  bought  the  said  lot, 
he  considered  it  as  his  own  property;  that  the  defendant  told 
him  that  if  he  did  not  wish  to  keep  the  lot,  he  would  lake  it 
off  his  hands,  the  defendant  paying  him  the  amount  for  which 
it  was  struck  ofl*  and  the  costs  of  drawing  the  deed;'"  and,  up- 
on his  cross  examination,  he  further  states,  "  that  the  defend- 
ant came  to  him  on  the  morning  of  the  sale,  whereupon  the 
defendant  stated  to  him,  that  he  had  no  money  to  purchase;  to 
which  the  defendant  replied,  that  if  he  had  no  money  to  pur- 
chase, he  would  lend  him  some,  or  take  the  lot  off  of  his  hands 
if  he  did  not  want  it;"  and  that  "/ic  would  not  have  purchased 
it,  if  the  defendant  had  not  offered  to  advance  him  the  money,  or 
take  it  off  his  hands.'^ 


214  CASES  IN  CHANCERY. 

First circuii.       This  Gmbraces  all  the  direct  testimony  relating  to  the  pur- 

^"^'"'''^^''^  chase,   and   shows  irresistibly  that  the  lot  was,  in  truth  and  in 

^  "'■   ,     fact,  bousfht  by  the  defendant.     The  remark  made  by  the  de- 

fendant  to  Beaubien,  that  he  would  "lend  him  money  or  take 

the  lot  off  of  his  hands,"   was  only  a  measure  adopted  by  the 

defendant  the  more  effectually  to  conceal  his  design. 

But  there  are  collateral  circumstances  and  circumstantial 
proof,  having  a  direct  bearing  on  the  question,  and  which  es- 
tablishes the  fact  with  as  much  certainty  as  the  positive  testi- 
mony of  the  witnesses. 

1.  Why  did  the  defendant  conceal  the  time  of  sale  from  the 
guardian  ol  the  complainants,  who  applied  for  information  on 
the  subject  t 

2.  Why  did  he  conceal  the  day  of  sale  from  the  guardian, 
until  the  morning  the  lot  was  advertised  for  sale? 

3.  Why  remark  to  the  guardian  when  she  suggested  to  him 
the  impropriety  of  selling,  as  the  day  was  rainy,  that  he  could 
not  postpone  the  sale? 

4.  When  he  found  that  "  only  one  or  two  persons  bid  on  the 
lot  at  the  time  of  sale,  beside  the  purchasei',"  why  did  he  not 
postpone  it,  especially  as  the  day  was  tainy  1 

5.  Why  offer  a  lot  for  sale  which  was  not  saleable,  accord- 
ing to  the  testimony  of  Mr.  Desnoyers? 

These  are  strong  circumstances,  and  are  all  fully  proved,  as 
will  be  seen  by  an  examination  of  the  testimony,  and  contra- 
dict the  answer  in  several  important  particulars,-  which  will, 
according  to  well  established  principles,  induce  the  court  to 
give  but  little  weight  to  the  other  portions  of  the  answer  that 
remain  unsupported  by  other  testimony. 

The  defendant  admits  that  the  lot  was  worth  more  to  Jo- 
seph Campau,  senior,  than  any  other  person,  because  he  owned 
the  one  adjoining.  For  the  same  reason,  it  was  worth  more 
to  the  defendant,  who  also  owned  one  adjoining  lot.  It  is  then 
manifest,  that  thete  was  and  must  have  been  a  strong  tempta- 
tion, on  the  part  of  the  defendant,  to  obtain  the  lot  in  question; 
and  this  fact  alone  will  weigh  strongly,  were  the  evidence  nice- 
ly balanced. 


CASES  IN  CHANCE.IY.  '215 

II.   The   frross  iiiiscondiict  of  the  defendant,   in  conductinn:  ^''■'"*^''"^"''- 
the  sale,  will  warrant  the  interposition  of  this  court.  lieauiticn 

1.  It  is  averred  in  the  bill,  and  the  averment  is  sustained  by    Pouiiard. 
several  witnesses,  that  the  day  of  sale  was  inclement  and  rainy, 
which  should  have  induced  the  defendant  to  post{)one  it. 

2.  It  is  shown,  further,  that  there  were  only  one  or  two 
bidders  present  at  the  sale,  exclusive  of  Beaubien. 

3.  It  is  also  shown,  that  the  day  of  sale  was  concealed  from 
the  mother  and  guardian  of  the  complainants. 

4.  The  defendant,  upon  a  request  made  by  the  said  guardian, 
that  the  sale  should  be  postponed,  replied  that  "  he  could  not 
postpone  the  sale." 

5.  It  is  very  manifest,  that  the  defendant  should  have  ofTer- 
ed  for  sale  one  of  the  dry  lots,  which  was  saleable,  rather  than 
a  water  lot,  which  was  unsaleable. 

These  are  some  of  the  prominent  facts  which  go  to  establish 
the  allegation  of  gross  misconduct,  and  in  the  eye  of  a  court  of 
equity,  fraud. 

It  is  the  peculiar  province  of  this  court,  to  guard  and  pro- 
tect the  rights  of  infant  heirs,  and  if,  in  the  discharge  of  his 
duty,  as  administrator,  and  in  conducting  the  sale,  the  defend- 
ant did  not  exercise  that  sagacity  and  prudence,  which  is  usu- 
ally exercised  by  persons  transacting  their  own  business,  he 
will  be  responsible.  {See  2  /.  C.  R.,  70.)  In  this  case,  the 
court  carried  the  investigation  beyond  the  order  of  the  probate 
court,  and  examined  into  the  conduct  of  the  defendants.  And 
the  simple  fact,  in  the  present  case,  that  the  debts  due  by  es- 
tate were  nominal,  and  might  have  been  paid  in  three  months, 
by  leasing  the  real  estate,  is  another  strong  circumstance  in 
support  of  the  allegation,  that  the  defendant  sought  to  advance 
his  own  interest,  rather  than  protect  the  rights  of  those  he 
represented,  and  comes  within  the  scope  of  chancellor  Kent's 
reasoning,  in  the  authority  cited.  It  will  also  be  perceived, 
by  this  authority,  that  the  chancellor  comments  with  much  se- 
verity, upon  the  conduct  of  the  defendants,  in  conducting  the 
sale,  by  not  giving  notice,  &c.,  and  for  not  exercising  proper 
vigilance  and  care,  in  order  to  obtain  the  highest  price  for  the 


216  CASES  IN  CHANCERY. 

First  Circuit,  jandg  tj^gy  gojjj,     ^he  acts  of  the  defendant  in  this  case,  so  far 
Beaubien    ^^  the  Sale  is  ccncemed,  is  obnoxious  to  the  censure  cast  upon 
Pou'^ard.    the  defendants  in  the  case  referred  to,  and  are,  in  contempla- 
tion of  the  law,  fraudulent. 

B.  F.  H.  WiTHERELL  for  defendant. 

Jean  Bt.  Beaubien,  the  father  of  the  complainants,  died  in 
December,  1828.  intestate,  leaving  the  complainants  his  heirs 
at  law. 

.  Simon  Poupard,  the  defendant,  became,  at  the  request  of  the 
family,  administrator. 

In  settling  the  estate,  it  became  necessary  to  sell  real  estate 
to  pay  debts  and  incidental  expenses. 

Poupard  obtained  a  license  from  the  judge  of  probate,  gave 
bond  according  to  law,  advertised  according  to  law,  and  sold 
water  lot  No.  12,  on  the  Lambert  Beaubien  farm,  so  called,  at 
auction,  for  $150,  to  Louis  Beaubien. 

The  complainants  alledge  that  the  lot  was  struck  off  to  Louis 
Beaubien;  that  it  was  in  fact  for  the  defendant,  Poupard;  and 
that  he,  being  as  administrator,  a  trustee  for  complainant,  could 
not  purchase  directly  or  indirectly. 

The  defendant  alledges  that  he  did  not  purchase  at  the  sale 
at  auction,  either  directly  or  indirectly;  that  he  made  great 
efforts  to  procure  bidders  to  attend  the  auction,  and  personally 
called  on  several  who  were  interested  in  adjoining  lands,  and 
on  one  Joseph  Campau,  whose  peculiar  interest  it  was  to  pur- 
chase the  lot  in  question,  and  who  was  fully  able  so  to  do. 

That,  among  others  that  he  solicited  to  attend  and  bid,  was 
the  said  Louis  Beaubien,  the  uncle  of  the  complainants;  that, 
to  induce  said  Louis  to  attend  and  bid,  for  the  purpose  of  raising 
as  large  a  sum  as  possible  for  the  lot,  said  Poupard,  said  to  said 
Louis,  that  if  he  would  attend  and  bid,  ''if  the  lot  should  be 
knocked  off  to  said  Louis,  and  that  if  he  did  not  wish  to  keep 
it,  he,  said  Poupard,  would  take  it  of  him;  that  said  lot  was 
sold  to  said  Louis,  bona  fide,  for  #150;  that  said  Louis  had  a 
perfect  right  to  keep  the  lot,  but  subsequent  to  the  sale,  conclu- 
ded to  let  said  Poupard  have  it,  and  that  the  land,  afterwards, 


CASES  IN  CHANCERY.  217 

was  conveyed  to  the  sai'l  Louis,  and  by  hitn  subsequently  to  ^'"^^''^'^""■ 
said   Poupard;  that  it  was  sold  for  all  that  it  was  worth,  and    ucaubien 
that  the  whole  transaction  was  in  good  faith.  Poup'ard. 

The  Chancellor. — The  several  allegations  in  the  bill,  upon 
which  relief  is  sought,  are  sufficiently  met  by  the  answer,  ex- 
cept  so   far  as  they  relate  to  the  sale  of  the  lot  in  question. 

The  proceedings  before  the  court  of  j)robate,  and  notice  of 
the  sale,  &c.,   seem   to  have  been  regular  and  fair.     It  is  al- 
ledged  in  the  bill,  and  is  not  denied  in  the   answer,   that  the 
administrator,  before  the  sale,  expressed  a  desire  or  intention 
to  purchase  the  lot.     It  also  appears  that  he  requested  Louis 
Beaubien  to  attend  the  sale;  that  Louis  Beaubien  told  him  that 
he  had  no  money,  to  which  Poupard  replied,  he  would  lend 
him  the  money,  or  would  take  the  lot;  that  the  day  of  sale  was 
rainy  and  inclement,   and  there  were  but  one  or  two  persons 
who  bid  on  the  lot,  besides  Beaubien,  who  purchased  it;  and 
that  the  lot  was  agreed  to  be  conveyed  to  Beaubien,   and  by 
him  back  to  Poupard,  on  their  return  from  the  sale.     The  in- 
ference, I  think,  is  strong,  that  the  sale  was,  in  fact,  to  Beau- 
bien, for  the  benefit  of  Poupard,  although  there  does  not  appear 
to  have  been  an  express  agreement  to  that  effect.     Else  why 
the  strong  urgency  that   Beaubien,  \vho  confessedly  had   no 
money  to  pay  for  the  lot,  should  attend  the  sale.     Poupard,  it 
seems,  knew  that  Beaubien  could  not  pay  for  the  lot,  and  the 
offer  to  lend   him  money  or  take  the  lot  off  his  hands,  still 
leaving  the  option  with  Poupard   to   do  either  the  one  or  the 
other,  and  the  known  fact,   that  Beaubien  was  unable  to  buy 
himself,  in  effect  secured  the  lot  to  Poupard;  and  it  was  so 
consummated  immediately  after  the  sale.      The  administrator, 
I  think,  erred,  acting  in  the  capacity  he  did,  in  not  adjourning  the 
sale,  when  the  day  was  rainy  and  inclement,  and  there  were  but 
one  or  two  bidders  beside  Beaubien.    It  may  have  been,  that  the 
desire  of  Poupard  to  secure  the  lot,  had  no  influence  upon  this 
decision.     But  if  a  sale  of  this  character  should  be  sustained, 
it  would  open  the  door  for  frauds,  and  would  certainly  throw 
great  temptations  before  trustees  acting  in  this  capacity.     I 
am  satisfied    that  Louis  Beaubien  had  no  intention  of  aiding 
Vol.  L  28 


218  CASES  IN  CHANCERY. 

First  Circuit.  pQupard  in  purchasing  the  lot  improperly;  but  he  purchased 

^^J^2^^]^  under  the  promise  that  Poupard  would  take  it  off  his  hands. 

Pou^pard.    It  makes  no  diffei-ence  by  what  means  an  administrator  secures 

the  benefit  of  a  purchase,  at  a  sale  made  by  himself ;  the  rule 

is  imperative,  that  he  cannot  become  a  puixhaser  at  all.     12 

Peters'  Rep.,  25,  Hart  vs.  Ten  Eijck;  2  Jo/ins.  Ch.  Rep.,  62. 

I  see  no  reason  to  suppose,  that  Poupard  intended,  in  fact, 
to  commit  a  fraud  upon  the  rights  of  the  heirs,  but  enough  ap- 
pears, to  show  that  he  intended  to  secure  the  lot  under  the 
sale.  To  sustain  this  sale,  would  in  effect  break  down  the 
salutary  rules  of  law-  upon  this  subject,  and  expose  the  rights 
of  minors  to  the  adroit  management  of  an  interested  trustee. 
The  sale  must  be  set  aside,  and  the  deed  to  Beaubien,  and 
from  him  to  Poupard,  cancelled,  and  a  re-sale  ordered,  accor- 
ding to  the  prayer  in  the  bill. 


CASES  IN  CHANCERY.  219 


Bank  of  Michigan  vs.  John  R.  Williams. 

A  pica  of  a  former  suit  pcndinj;  in  another rourt  for  the  same  action,  must  set  forth  the  general         1940. 
cliaracter  and  olijects  of  the  former  suit,  aiiJ  the  relief  prayed  for.  tiral  Circuit. 

A  motion  to  open  a  default  on  the  affidavit  of  the  solicitor  that  the  defendant  had,  as  he  lie-      „ 

'  Bank  of 

lieve.l,  a  good  defence  by  way  of  setoff,  to  a  part,  nt  least,  of  the  amount  claimed  in  the  bill,      Michi"an 

was  refused  on  the  {rround  thai  no  reason  was  shown  why  tlie  affidavit  was  not  made  by  the    ,,^.?'?' 

party  defendant  inslcad  of  the  solicitor. 

The  plea  to  the  bill  filed  in  this  case,  states  that  another  suit  octoherc. 
is  pending  in  the  supreme  court  for  the  same  cause,  and  for 
the  like  relief  prayed  by  the  bill  filed  in  this  court. 

Joy  and  Porter,  for  complainant. 

The  plea  filed  in  this  suit,  is  in  itself  defective,  radically. 
It  does  not  meet  any  portion  of  the  bill  filed  in  the  supreme 
court  which  can  make  it  appear  to  this  court  that  both  bills 
were  for  the  same  identical  matter,  wliich  ought  to  have 
been  done.  So  much  of  the  first  bill  should  have  been  set 
up  in  the  plea  as  would  make  it  appear  that  the  same  mat- 
ter was  involved  in  both.  (See  Story's  equity  pleadings,  570; 
Beame's  pleas  in  equity,  140.)  In  pleas  of  this  sort,  says 
Story,  there  are  several  matters  essential  to  their  validity. 
The  pleas  should  set  forth  with  certainty,  the  commencement, 
the  general  nature,  charade?^,  objects  and  relief  prayed  for,  in 
the  former  suit. 

In  a  plea  of  former  decree,  &c.,  so  much  of  the  bill  and  an- 
swer must  be  set  forth  as  will  show  that  the  same  point  was 
then  in  issue.  Mitford,  258;  14  John.  Rep.,  501.  The  plea 
must  not  set  up  the  facts  historically,  hut  must  set  out  the  sub- 
ject matter  of  the  suit  pending,  with  sufficient  averments.  3  At- 
kins, 589;  2  AtMns,  G03.  The  excuse  for  the  informality  in 
the  plea  was,  that  the  defendant  had  not  copies  of  the  plead- 
ings with  him  in  England,  as  the  original  suit  was  in  Jamaica. 
The  chancellor  says  this  does  not  mend  the  matter;  he  ought 
to  have  applied  for  time  to  plead  and  answer.  The  court  can- 
not allow  a  plea  of  this  kind,  defective  in  that  manner. 


220  CASES  IN  CHANCERY. 

Firstcircuit.      The  above  authorities  are  conclusive  as  to  the  validity  of 

'"'^"'•'"^^  this  plea,  and  it  cannot  be  allowed.     Should  the  court,  how- 
Bank  of  i  '  ,  I   •  1  II 

MiciMgan  g^.gj,^  tijjj^]^  ditfcrently,  and  if  it  shali  think  this  plea  well 
Williams.  p]gj^(jg(j^  it  would  only  put  us  to  an  election  which  suit  we 
would  prosecute,  even  supposing  both  were  now  pending;  or 
perhaps,  order  the  first  suit  fo  be  dismissed  with  costs,  which 
was  actually  done  before  this  suit  was  commenced.  (See 
Cooper's  equity  pleadings,  275;  Story  s  equity  pleadings,  570, 
572;  Beaines,  151;  Mit.  PL,  321. 

H.   T.   Backus,  for  defendant. 

The  Chancellor.  The  plea  in  this  case,  al ledges  gener- 
ally, that  another  suit  is  pending  in  the  supreme  court  for  the 
same  cause  and  for  the  like  I'elief.  This  is  insufficient.  The 
plea  should  set  forth  the  general  character  and  objects  of  the 
former  suit,  and  the  relief  prayed.  Story's  Eq.  PL,  570;  3 
»Stk.,  590.  This  is  not  done  here,  and  the  plea  must  be  over- 
ruled as  insufficient. 


An  order,  pro  confesso,  was  entered  October  27,  and  H.  T. 
Backus,  solicitor  for  complainant,  filed  an  affidavit,  November 
5,  and  moved  to  set  aside  the  order,  pro  confesso. 

He  states  in  his  affidavit,  that  in  the  order  adjudging  the 
plea  to  be  insufficient,  defendant  was  allowed,  with  leave,  to 
file  his  answer;  that  he  supposed  that  he  had  forty  days  within 
which  to  file  his  answer,  and  so  advised  the  defendant;  that  "as 
he  believes,  the  said  defendant  has  to  said  bill  of  complaint,  a 
good  defence,  to  a  part  at  least,  of  the  amount  claimed  therein 
by  way  of  offset,"  and  that  he  had  been  unable  to  prepare 
the  answer,  &c. 

The  Chancellor  denied  the  motion  on  the  ground  that  the 
affidavit  was  made  by  the  solicitor,  and  no  reason  was  shown 
why  it  was  not  made  by  the  party  defendant  himself.  (1.) 

(IJ  The  affidavit  of  the  solicitor  showing  a  meritorious  defence,  and  the  nature  thereof,  is 
not  sufficient,  unless  he  is  himself  acquainted  with  the  facts  ;  and  even  then,  a  sufficient  ex- 
«UBe  must  be  shown  for  not  producing  the  affidavit  or  sworn  answer  of  the  defendant.  Hunt 
Ts.  fTallie,  6  Paige,  372. 


CASES  IN  CHANCERY.  221 


George  C.  Bates  vs.  John  D.  Garrison. 

This  court  unquestionably  has  the  power  to  direct  the  alteration  or  correction  of  a  decree  after  1840. 

it  has  been  entered,  either  upon  motion  or  petition,   where  there  is  evidently  a  mistake  or  First  Circuit, 
clerical  error.  V^^^v^^fc,/ 

Bates 

This  was  a  motion  to  correct  the  record,  by  amending  the    car'i^ison. 
decree  entered  at  the  term  previous. 

The  motion  was  ioundcd  upon  an  affidavit  which  stated  that  October o. 
the  suit  in  which  the  decree  was  entered,  was  for  the  foreclosure 
of  a  mortgage;  that  the  mortgage  was  given  for  the  purchase 
money,  and  that  that  fact  was  stated  in  the  bill;  that  the  decree 
was  by  mistake  entered  for  a  sale  of  the  mortgaged  premises, 
in  default  of  payment,  &c.,  in  two  years  and  three  months  from 
the  time  of  filing  the  bill,  instead  of  o?ie  year  and  three  months. 

A.  D.  Eraser  in  support  of  motion. 

Cited  Seatons  Forms,  275;   1  Hoff.,  Ch.  Pr.,  559. 

The  Chancellor.  This  court  unquestionably  has  the  pow- 
er to  direct  the  alteration  or  correction  of  a  decree  after  it  has 
been  entered  either  upon  motion  or  petition,  where  there  is 
evidently  a  mistake  or  clerical  error.  In  this  case  there  was 
evidently  a  mistake  or  error  in  the  decree  for  the  sale  of  the 
mortgaged  premises  in  two  years  and  three  months,  when  the 
party  was  entitled  to  take  his  decree  for  a  sale  in  one  year  and 
three  months  from  the  time  of  filing  the  bill. 

The  register  is,  thei-efore,  directed  to  make  the  proper  cor- 
rection or  alteration. 

And  the  alteration  having  been  made  by  the  register,  the 
chancellor  put  his  initials  to  the  same. 


222  CASES  IN  CHANCERY. 


Mason  and  Pritchette  vs.  the  Detroit  Citv  Bank 

and  others. 

1840.  Where  lenve  is  given  to  amend  an  answer,  a  new  answer  with  the  amendments  added,  mttst  be 

First  Circuit.      ^j^jg  ^5]^^  j^j,j  copy  served,  or  the  original  answer  withdrawn  by  leave  of  the  covirt,  and 
""^^"^"^^      the  amendments  added,  or  the  amendments  must  refer  to  tlie  portions  of  the  answer  on  file, 

PrU*chetle        intended  to  be  amended,  and  specifying  tlieir  nature  and  application. 
Detroit  City   Where  amendments  were  in  the  form  of  affidavits,  without  referring  to  the  answer,  it  was  held 

Bank.  to  be  irregular. 

December  1.      This  was  a  motion  to  dissolve  an  injunction. 

The  defendants,  at  a  former  term,  had  obtained  leave  to 
amend  their  answer.  The  papers  on  file,  claimed  by  the  de- 
fendants to  be  amendments,  were  drawn  in  the  form  of  affida- 
vits, and  do  not  purport,  either  in  the  body  or  indorsement  of 
them,  to  be  amendments  to  the  answer  on  file. 

The  complainants  object  to  hearing  the  motion  to  dissolve 
the  injunction,  on  the  ground  that  no  amendment  to  the  ans- 
wer has  been  filed  or  served. 

T.  RoMEYN,  for  complainants. 

The  defendants,  Howard  and  the  bank,  had  leave  to  amend 
their  answer,  by  having  the  answer  of  the  bank  sworn  to,  and 
its  seal  verified. 

Without  adverting  to  the  substance  of  the  affidavits  filed  as 
amendments  to  the  answer  of  the  bank,  the  complainants  in- 
sist that  these  amendments  are  not  legally  and  formally  before 
the  court,  and  that  they  have  not  been  duly  served  upon  the 
complainants. 

The  amendments  do  not  refer  to  th?  pleadings  onjile. 

They  should  have  been  added  to,  or  incorporated  with  them 
in  some  way  or  other. 

A  new  answer  should  have  been  drawn,  and  the  amend- 
ments made  a  part  of  it;  and  a  copy  of  the  whole  should  have 
been  served  on  the  complainants. 

The  first  answer  was  a  nullity,  for  all  purposes  of  a  motion 
to  dissolve  the  injunction.     This  is  admitted;  of  course,  there 


CASES  IN  CHANCERY.  223 

was  no  necessity  for  excepting  to  it,  to  prevent  sucli  a  motion.  Firsicircuit. 
When  it  was  perfected,  by  beino;  properly  authenticated,  then  „ 

»  '       J  O   t        1  .'  '  Mason  and 

the  right  to  except  became  available.     But  after  this  no  copy    ^'^'^j"""" 

I  Dclroii  City 

was  served.  uank. 

The  affidavits  of  Harris  and  Brown  were  served,  but  with 
no  notice  that  they  were  intended  as  amendments  to  the  ans- 
wer; consequently,  ihe  complainants  have  not  had  an  oppor- 
tunity of  excepting  to  the  amended  answer. 

Even  if  the  first  position  of  the  complainants  be  incorrect, 
still  it  is  evident  that  they  have  a  right  in  some  way  or  other, 
to  their  exceptions,  and  that  this  is  lost  if  the  motion  to  dis- 
solve is  now  heard. 

If  the  court  should  not  deem  it  necessary,  that  the  defen- 
dant should  prepare  a  new  answer,  still  it  is  beyond  question, 
that  the  amendments  should  7-efer  to  ihe  answer  on  file.  See  1 
Hoff?n.  Pr.  240,  290,  292. 

The  amendments  should  have  been  made  in  one  of  three 
ways,  viz: 

1st.  A  new  answer  should  have  been  drawn;  the  amend- 
ments added,  and  the  whole  served  and  filed;  or 

2nd.  The  old  answer  should  have  been  taken  from  the  files, 
by  leave  of  the  court;  the  amendments  added,  and  properly 
served  on  the  complainants;  or 

Sd.  The  amendments  should  have  been  drawn,  referring  to 
the  answer  on  file,  and  a  copy  should  have  been  served,  speci- 
fying their  nature  and  application. 

The  papers  now  produced,  are  mere  general  affidavits.  They 
do  not  "purport  to  he  amendments.  This  practice  is  irregular 
and  mischievous.  They  do  not  purport  to  be  amendments  to 
an  answer.  They  do  not  refer  to  the  answer  as  on  file,  and  if 
false,  no  perjury  can  be  assigned  on  them. 

J.  M.  Howard,  for  defendants. 

The  Chancellor.  The  first  question  presented,  is,  whe- 
ther there  has  been  such  an  amendment  made  to  the  answer, 
as  would  compel  the  complainants  to  regard  the  answer  as 
filed,  and  to  except,  or  reply  to  it. 


224  CASES  IN  CHANCERY. 

Firstcircuit.      The  defendants,  Howard   and  the   Detroit  city  bank,  had 
T^""''^^^  leave  to  amend  their  answer.     The  papers   purporting  to  be 

Mason  and  '      '  '         ' 

priidaette   ^^  amendment,  are  in   the   form  of  aifidavits,  and   are  so  in- 

Detroit  City    j  j 

Bank.      dorse  d. 

The  amendments  should  have  been  added  to,  or  incorpora- 
ted with  the  answer,  in  some  way. 

A  new  answer  should  have  been  made,  the  amendments 
added,  served  and  filed;  or 

The  original  answer  should  have  been  withdrawn,  by  leave 
of  the  court,  and  the  amendments  added  and  served  on  the 
complainants;  or 

The  amendments  should  have  been  drawn,  referring  to  the 
portions  of  the  answer  on  file,  intended  to  be  amended^  and 
specifying  their  nature  and  application. 

The  papers  filed,  are  merely  general  affidavits,  and  do  not 
purport  to  be  amendments. 

The  motion  is  therefore  premature,  and  cannot  now  be 
heard. 


CASES  IN  CHANCERY.  225 


Charles  H.  Carroll  and  others  vs.  Robert   Vax      i?4t». 

,  First  Circuit. 

Kejvsellaer  and  others. 


Carroll 

Van  Ren 
there  is  no  security  for  iis  payment  taken.  scllaer. 


The  vendor  of  real  estate  has  an  eciuitahli:  lien  upon  the  same  for  the  purchase  money,  where     ,,   ''*■ 

\  an  Ren- 


The  bill  in  this  case  was  filed  December  9,  1839,  and  stated  n^-^^ber  i. 
that  November  8,  1836,  complainants  were  seized  and  posses- 
sed in  their  own  right  in  fee  simple,  of  certain  lands  and  pre- 
mises situated  in  the  county  of  Lenawee,  in  the  state  of  Michi- 
gan; that  they  sold  the  same  to  Peter  Stuyvesant,  of  the  city 
of  New  York,  for  the  sum  of  $12,284  CO,  and  executed  and  de- 
livered a  deed  therefor  in  due  form  of  law;  that  $5,174  54  was 
paid  on  the  execution  and  delivery  of  the  deed,  and  at  the  same 
time  Stuyvesant  delivered  to  complainant  Charles  H.  Carroll  a 
bond,  executed  by  John  Catlin,  bearing  dato  September  2,  1835, 
for  the  sum  of  $7,197  10,  payable  September  22,  1838,  bear- 
ing interest  at  six  percent,  payable  semi-annually,  which  bond 
was  assigned  and  guarantied  by  Stuyvesant,  with  the  under- 
standing and  agreement,  that  if  the  money  secured  by  the  bond 
should  be  paid  to  Charles  H.  Carroll,  the  same  should  be  appli- 
ed in  liquidation  of  the  balance  of  said  purchase  money;  that 
July  30,  1839,  Stuyvesant  conveyed  the  lands  and  premises  to 
Robert  Van  Rensellaer.  The  bill  charges  Van  Rensellaer 
with  full  notice  of  all  the  facts;  and  also  charges  the  conveyance 
from  Stuyvesant  to  Van  Rensellaer  to  be  fraudulent,  and  that 
Stuyvesant  and  Catlin  are  insolvent  and  that  there  yet  remains 
due  of  the  purchase  money,  about  the  sum  of  $8,222. 

An  answer  was  put  in  by  Van  Rensellaer,  which*  was  sub- 
sequently withdrawn  and  the  bill  taken  as  confessed. 

The  complainants  asked  a  decree  that  the  amount  of  the 
purchase  money  remaining  due  from  Stuyvesant  to  comjilain- 
ants  shall  be  a  lien  on  the  premises,  and  that  defendants  re- 
deem the  premises  by  the  payment  of  the  sum  remaining  due 
within  a  certain  lime,  or  in  default  thereof,  that  all  and  singu- 
lar the  premises  be  sold,  &c. 

Vol.  I.  29 


226  CASES  IN  CHANCERY. 

FirstCircuit.      A.  D.  Frazer,  foi'  complainunts. 


ca^rroii  rpj-jg  propositloii  that  the  vendor  of  real  property  who  has 

^Inl^r"'  not  taken  separate  security  for  the  purchase  money,  has  a  lien 
for  it  on  the  land  as  against  the  vendee  and  his  heirs,  is  too 
weW  settled  in  the  several  states  of  this,  Union  to  admit  of  dis- 
cussion, subject  indeed  to  be  defeated  by  alienation  to  a  bona 
fide  purchaser  without  notice.  Brown  vs.  Gilman,  4  Wheat 
255,  and  notes.  Baily  vs.  Grcenlcaf.  7  Wheal,,  46.  This  doe- 
trine  is  fully  examined  by  Lord  Elden  in  the  case  of  JMcKrctte 
vsi  Syrnmons,  15  Ves.,  29.  And  ihc  result  of  his  investiga- 
tion is  , 

1st.  That  generally  speakipg  there  is  a  lien. 
2d.  That  in  those  general  cases  in  which  there  would  be  a 
lien  as  between  vendor  and  vendee,  the  vendor  will  have  the 
lien  against  a  third  person  who  had  notice  that  the  money  was 
not  paid.  He  adds,  these  two  points  seem  to  be  clearly  set- 
tled. Chancellor  Kent  also,  in  Garson  vs.  Green,  1  J.  C.  R., 
303,  recognizes  this  doctrine.  Reference  is  also  made  to  the 
following  cases  ;  Hughes  vs.  Kearny,  1  Sch.  &f  Lef.,  132  ; 
jyain  vs.  Proivse,  G  Ves.,  752;  Brown  vs.  Gibnan,  1  JMason,  C. 

a  R.  191. 

The  Chan"celi.or.  The  vendor  of  real  estate  has  unques- 
tionably an  equitable  lien  upon  the  same  for  the  purchase  mo- 
ney, where  there  is  no  security  for  its  payment  taken.  The 
complainants  arc  entitled  to  take  their  decree  in  the  form  sug- 
gested. 


CASES  IN  CHANCERY.  227 


James  B.  Clark  and  another  vs.  Phineas  Davis. 

A  creditor's  bill  must  contain  tlie  averments  required  by  the  ICOtli  rule,  aud  ihosc  averments         16-10. 

must  be  sworn  to,  in  llifi  jurat.  '  *      ""c   i  . 

A  bill  may  be  filed  as  well  to  reach  mere  equitable  interests,  as  in  aid  of  an  e.recution  at  law,         cir.rk 

and  sucli  a  bill  is  not  niultit'arious.  rs. 

Davis. 
Tbc  right  to  tile  a  creditor's  bill  liavini;  once  attached  by  the  return  of  the  execution  nnsa'.isfied, 

the  parly  is  not  prevented  from  commencing  proceedings  in  chancery,  by  the  issuing  of  a  new 

execution. 
A  general  demurrer,  for  want  of  equity,  cannot  be  sustained,  unless  the  court  is  satisfied  that 

no  discovery  or  proof  properly  called  for  by,  or  founded  on,  the  allegations  in  the  bill,  can 

make  the  subject  matter  of  the  suit  a  proper  case  for  equitable  cognizance. 
Wlicre  a  new  cause  of  demurrer  is  assigned,  ore  I  onus,  the  cause  must  be  co-eitensive  with 

the  demurrer. 

M.-  ,        ]•         1  •     •  ,•    .  December  1. 

otion  to  dissolve  an  injunction. 

The  bill  filed  in  this  case,  is  framed  with  a  double  aspect.     It 

sets  up  the  return  of  an  execution  unsatisfied,  and  the  issuing 

of  another  execution.     It  seeks  to  reach  the  equitable  interests 

of  the  defendant,  and  also  to  aid  the  second  execution.     The 

jurat  is  special,  and  as  follows: 

"  State  of  jyiicLigan,  Couniij  of  Wayne,  ss. 

"Ezra  C.  Seaman,  soHcitor  for  the  complainants,  being  duly 
sworn,  says,  that  he  drew  the  draft  of  the  foregoing  bill  of  com- 
plaint, and  knows  the  contents  thereof;  that  the  complainants 
arc  not  citizens  of  the  state  of  Michigan,  but  of  ihe'^^state  of 
New  York,  as  stated  in  the  bill,  as  this  deponent  verily  be- 
lieves; that  this  deponent  has  examined  the  records,  papers, 
and  proceedings  in  the  suit  stated  in  the  bill  of  the  complain- 
ants, against  the  defendant,  Phineas  Davis,  in  the  otlicc  of  the 
clerk  of  the  circuit  court  for  said  county  of  Wayne,  and  verily 
believes  that  a  judgment  was  obtained  in  said  suit,  and  that  an 
execution  was  issued  thereon  and  returned  unsatisfied,  as  sta- 
ted in  said  bill.  And  this  deponent  further  says,  that  he,  as 
attorney  for  the  plaintiff's,  procured  a  new  execution  on  said 
judgment  to  be  issued  and  delivered  to  the  sheriff',  as  stated  in 
the  bill,  on  the  28th  day  of  July  instant;  and  that  this  bill  is 


228  CASES  IN  CHANCERY. 

First  Circuit,  not  exhibited  by  collusion  with  said  Phineas  Davis,  or  for  the 
^"^y^^  purpose  of  protecting  the  property  and  effects  of  said  Davis, 


vs. 
Davis. 


or  any  part  thereof,  against  the  claims  of  other  creditors,  but 
for  the  sole  purpose  of  compelling  payment  and  satisfaction  of 
the  money  due  on  the  aforesaid  judgment,  the  whole  amount 
of  which  deponent  believes  to  be  unpaid,  and  the  judgment  in 
full  force."     Sworn,  &c. 

T.  RoMEYN,  in  support  of  the  motion. 

The  jurat  is  defective. 

1.  No  sufficient  cause  is  shown  for  its  not  being  sworn  to,  by 
the  complainants.      (See  Rule  13.) 

2.  The  substance  of  the  jurat  is  not  according  to  the  rule  of 
the  court.      Rule  14. 

3.  The  averments  required  by  the  109th  rule,  are  not  sworn 
to,  at  all.  These  averments  are  material,  and,  without  them, 
the  bill  cannot  be  sustained.  McElwain  vs.  Willis,  3  Paige, 
505. 

E.  C.  Seaman,  for  complainants. 

The  affidavit  does  contain  and  establish,  by  the  oath  of  the 
solicitor  in  the  first  place,  an  excuse  why  it  was  not  made  by 
one  of  the  plaintiffs;  and,  secondly,  it  establishes  all  the  mate- 
rial allegations  of  the  bill,  required  by  the  revised  statutes,  to 
give  the  court  jurisdiction,  (see  R.  S.,  365,  sec.  25-26,)  and 
substantially  complies  with  the  rules  of  court. 

It  is  averred  in  the  liill,  that  the  plaintiffs  aj-e  informed  and 
believe  that  the  defendant  has  equitable  interests,  choses  in  ac- 
tion, tiotes,  accounts,  judgments,  &c.,  amounting  to  over  one 
hundred  dollars,  &c.,  and  praying  a  discovery. 

This  is,  in  effect,  dut  a  formal  averment,  calling  for  discove- 
ry. The  affidavit  shows  that  the  plaintiffs  are  citizens  of  New 
York,  and  most  likely  ihey  have  no  information  whatever,  as 
to  the  equitable  effects  and  choses  in  action,  of  Davis.  At  all 
events,  their  solicitor  here  does  not  know,  and  cannot  know, 
what  information  the  plaintiffs  have  on  the  subject,  nor  what 
their  belief  is,  on  the  subject;  and,  therefore,  could  not  swear 


CASES  IN  CHANCERY.  229 

that  the  plaintiTs  were  informed  and  believed  the  matters  sta-  First  circuit. 
ted  in  the  bill.     The  solicitor   might  swear  that  he  had  been  """"^^j^^^^^ 
informed  and  believed,  himself,  that  Davis  has  notes,  &c.,  but      ^u^jg. 
he  could  not  swear  that  the  plaintiffs  had  been  informed  and 
believed.      The  form  of  aflidavit  in   the  rules  docs  not,   there- 
fore, apply  to  cases  of  bills,  where  an  agent  or  solicitor  swears 
to  the  subject  matter. 

Rule  14  does  not  apply  to  cases  of  bills,  &c.,  sworn  to  by 
an  agent,  for  he  cannot  swear  to  what  the  plaintiff  ie/ieres,  and 
seldom  can  swear  to  what  the  plaintiff  has  been  informed. 
The  statute  and  rule  110,  has  been  complied  with,  by  swear- 
ing to  all  the  material  parts  of  the  bill,  and  all  the  chancellor 
deemed  necessary  when  the  injunction  was  granted. 

The  rules  of  court,  requiring  bills  to  be  sworn  to,  apply  to 
only  so  much  of  the  bill  as  seeks  to  reach  choses  in  action,  &c,, 
on  the  ground  of  execution  returned  unsatisfied.  The  injunc- 
tion to  restrain  the  part}'  from  disposing  of  real  and  personal 
property,  which  might  be  levied  on  under  execution,  was  pro- 
perly granted,  according  t")  the  English  rules,  on  a  separate 
affidavit,  merely  setting  forth  the  recovery  of  judgment  and 
suing  out  execution. 

The  Chancellor.  The  jurat  is  insufficient.  It  is  special, 
and  none  of  the  averments  required  by  the  lOOlh  rule,  are 
sworn  to  at  all.  These  averments  are  material;  without  them 
the  injunction  cannot  be  sustained.  {See  McElivain  vs.  Wil- 
lis,  3  Paige  R.,  505.)     The  injunction  must  be  dissolved. 

Injunction  dissolved. 


The  complainant  having  obtained  leave  to  file  a  new  affida- 
vit, the  following  affidavit  was  filed  as  an  amendment. 

Wayne  County,  ss. 

Ezra  C.  Seaman  being  duly  sworn,  deposes  and  says;  that 
the  complainants  in  this  cause,  are  not  citizens  or  residents  of 
the  state  of  Michigan:  that  they  were  both  absent  from  the 
state  of  Michigan  when  the  bill  of  complaint  was  filed  in  this 


230  CASES  IN  CHANCERY. 

Firstcircuit.  causG,  and  are  still  absent  from  this  state,  as  deponent  verily 
^^^^^^^y^  believes;  that  this  deponent  is  the  attorney  and  agent  of  said 
Davis  complainants  for  the  purpose  of  collecting  the  judgment  set 
forth  in  the  bill  of  complaint  in  this  case;  that  this  deponent 
has  information  in  relation  to  the  recovery  of  the  judgment 
set  forth  in  the  said  bill,  and  issuing  of  the  several  executions 
thereon,  and  the  return  of  such  executions;  and  from  such  in- 
formation, deponent  verily  believes  ail  the  matters  set  forth  in 
said  bill,  in  relation  to  the  recovery  of  said  judgment,  issuing 
the  several  executions  thereon,  and  the  return  of  such  execu- 
tions, to  be  true,  as  the^rein  stated,  and  that  the  whole  amount 
of  said  judgment  is  due  and  unpaid.  Deponent  has  also  infor- 
mation in  relation  to  the  property,  effects,  choses  in  action 
and  equitable  interests  and  rights  of  said  Davis,  and  fi-om  such 
information,  deponent  verily  believes  that  said  Davis  had  at 
the  time  of  filini,'  the  bill  in  this  cause,  and  the  commencemer.t 
of  this  suit,  either  in  possession  or  held  in  trust  for  him,  (not 
including  such  trusts  as  have  been  created  by  and  due  person 
or  persons  other  than  said  Davis  himself,)  equitable  interests, 
things  in  action  or  other  property  of  the  value  of  upwards  of 
one  hundred  dollars,  exclusive  of  all  prior  just  claims  than  as 
is  set  forth  in  said  bdl.  Deponent  further  says,  that  no  answer 
has  bee  put  in  in  this  cause,  and  further  saith  not." 
Subscribed,  sworn,  &c. 

The  defendant  then  demurred  generally,  and  insisted  that 
the  bill  was  not  sustainable  either  as  a  creditor's  bill  or  as  a  bill 
in  aid  of  the  execution. 

The  cause  was  heard  upon  the  demurrer. 

T.  RoMEvx,  in  support  of  the  demurrer. 

As  a  creditor's  bill  it  is  insiifficienlly  verified. 

Such  bills  must  be  verified  by  oatli.     Rale  110. 

The  present  bill  is  not  verified  by  oath  according  to  the 
rules. 

First.  The  jurat  should  be  general,  extending  to  the  ivhole 
bill,  and  according  to  the  form  prescribed  by  the  14th  rule. 


CASES  IN  CHANCERY.  231 

Second.  E\'en  if  the  jiuat  miiy  be  speeiul,  and  extend  to  but  nrsicircuii 
a  part  of  the  bill,  the  present  iurat  does  not  cover  the  material  ""^^^^^^ 
statements  in  the  bill.  ,/'».• 

Davis. 

The  last  affidavit  must  be  considered  as  superceding  the  for- 
mer. The  rule  to  amend  was  for  "  lea\'e  to  file  a  Jieiv  affida- 
vit," not  a  supi)lemcntal  affidavit.  The  new  aflidavit  does  not 
alledge  that  the  bill  was  not  filed  by  collusion,  Sf-c,  in  the  man- 
ner prescribed  by  the  lOOlh  rule.  These  allegations  are  ma- 
terial, and  the  want  of  them  renders  the  bill  demurrable.  Mc- 
Elwain  vs.  Willis,  3  Paige,  505. 

Again.  If  both  aflidavits  are  to  be  considered  in  force  and 
subsisting,  still  neither  of  them  covers  the  averments  in  the 
8th  folio,  that  the  defendant  has  equitable  interests,  &c.,  pro- 
perty held  in  trust  for  him,  &c.  This  is  a  part  of  the  state- 
ment of  the  bill,  and  must  be  sworn  to.      Rule  110. 

The  bill  is  not  sustainable  as  a  creditors'  bill,  because  it 
shows  an  execution  outstanding,  not  returned,  and  not  return- 
able at  the  time  when  it  was  filed,  and  to  the  levy  of  which,  pro- 
perty sufficient  to  satisfy  the  debt,  was  subject.  {See  3  Paige, 
3U.) 

The  bill  is  not  sustainable  as  a  bill  in  aid  of  an  execution  on 
account  of  its  vagueness  and  uncertainty. 

It  does  not  state  that  the  defendant  was  seized  or  possessed 
of  any  property,  but  merely  states  the  belief  of  the  com- 
plainants.    Mountfnrd  vs.  Taylor,  G  Vesey,  792. 

There  is  no  description  of  the  property,  nor  of  the  incum- 
brances on  it.  The  whole  bill  is  vague,  uncertain  and  infor- 
mal,    (^e  McElwain  vs.  Willis,  9  Wendell,  561,  5G7-8-9.) 

The  Gibralter  stock  is  subject  to  an  execution  at  law,  [Rev. 
Stat,,  456,  sec.  37,)  but  the  complainant  has  not  followed  the 
directions  of  the  statute  as  to  the  levy,  {R.  S.,  456,  sec.  38,)  and, 
therefore,  is  not  entitled  to  aid  in  this  court.     9  Wend.,  fi60. 

The  bill  is  multifarious,  and  therefore,  demurrable.  J]fi/ford 
Ch.  PL,  118,  and  note.  The  demurrer  goes  to  the  whole  bill. 
Boyd  vs.  Hoyt,  5  Paige,  79. 

Even  if  the  general  demurrer  be  decided  to  be  inapplicable, 
the  objections  now  taken  are  good  causes  of  -demurrer,  ore 
tenus.     Ston/s  Eq.  PL,  365. 


232  CASES  IN  CHANCERY. 

Firstcireuit       £   (^   Seaman  for  complainanls. 

The  want  or  defect  of  averments  required  by  the  189th  rule 
of  court  in  New  York,  which  is  our  109lh  rule,  has  been  held 
a  defect  of  form  onl\%  and  may  be  supplied  by  amendment. 
JIcElwain  vs.  Willis,  3  Paige,  500.  507. 

The  defect  in  this  case,  if  it  was  a  defect  at  all,  was  in  the 
affidavit  only,  and  not  in  the  bill,  and  according  to  the  case  of 
McEhvain  cs.  Willis,  was  a  defect  of  form  only,  at  most,  and 
has  been  cured  by  the  amendment  or  new  affidavit  filed,  call 
it  by  what  name  you  choose. 

Such  a  defect  cannot  be  taken  advantage  of,  on  general  de- 
murrer, but  must  be  taken  advantage  of,  either  on  motion,  or 
on  special  demurrer.  A  general  demurrer  is  good  only  when 
it  appears  on  the  face  of  the  bill,  that  the  complainant  has  no 
equity.  Story's  Eq.  PL,  bbl,  sec.  Abb.  Demurrers  for  all 
causes  except  a  want  of  equity,  must  be  special.  ^Mitford's  PI., 
213,  214;    Story  s  E(j.  PL.  357,  sec.  Abb,  Abl. 

The  amendments  to  the  bill,  being  mere  matters  of  form, 
and  not  of  substance,  are  considered  as  forming  part  of  the  ori- 
ginal bill,  and  refer  to  the  time  of  filing  the  bill.  H'lrd  et.  al. 
vs.  Everett,  1  Paige,  124;  Mitford's  PI,  55,  note,  330;  Knight 
vs.  JIutthevcs,  1  .Muddock's  Rep.,  307;  Story's  Eq.  PL,  689; 
Cooper's  Eq..  340. 

The  original  affidavit  to  the  bill,  (which  defendant's  counsel 
claims  is  defective,  and  not  cured  evea  by  the  amendments 
and  new  affidavit,)  being  required  by  the  110th  rule  of  this 
court,  either  is,  or  is  not,  a  necessary  part  of  the  bill  itself.  If 
it  is  not  a  necessary  part  of  the  bill  itself,  then  it  is  a  mere  pre- 
liminary matter,  and  the  demurrer  being  to  the  bill  only,  and 
not  t'j  this  preliminary  affidavit,  cannot  reach  it,  even  if  it  is 
defective  or  totally  wanting.  If  it  is  a  necessary  part  of  the 
bill  itself,  then  the  amended  affidavit  cures  the  defect,  by  coming 
directly  within  the  terms  of  the  general  order  to  amend,  and 
is  good  without  the  special  clause  of  which  the  defendant's 
counsel  complains. 

If  the  affidavit  to  the  bill  is  not  a  necessary  part  of  the  bill 
itself,  then  the  question  arises,  is  it  necessary  at  all,  unless  for 


Clark 

vt. 
Duvis. 


CASES  IN  CHANCERY.  233 

the  purpose  of  obtaining  an  injunction  or  receiver  before  an-  Pirstcircuu. 
swer.  Tiiat  is  the  only  ol)ject  of  it;  the  proceedings  would 
be  good  witliuut  any  atlidavit  at  all.  But  if  this  bo  not  the 
true  construction,  the  worst  construction  that  can  bo  put  upon 
it  is,  that  it  is  a  m(?rc  irregularity  of  practice.  If  so,  the  only 
remedy  the  defendant  could  have,  would  be  to  move  to  dismiss 
the  bill,  and  this  should  have  been  done  before  appearing  in  the 
cause,  or  at  tlic  first  opportunity  after  being  informed  of  the 
irrefTularitv. 

By  appearing  and  putting  in  a  general  demurrer,  and  allow- 
ing more  than  six  months,  and  a  term  of  the  court  to  elapse 
without  objection,  it  is  now  too  late.  The  party  has  waived 
his  right  to  raise  any  such  objection.  It  has  been  expressly 
decided  by  Chancellor  Kent,  in  two  cases,  that  irregularities 
of  practice  arc  waived,  if  the  objection  is  not  made  in  a  proper 
manner  at  the  first  opportunity.  Skinjier  vs.  Daijlon,  5  Jo/in. 
CIi.  R('j).,  102;  2  /.  C.  R.,  210.  Your  honor  recently  made 
a  similar  decision  in  a  divorce  case,  where  Mr.  llomeyn  and 
INIr.  Harrington  were  counsel. 

The  demurrer  is  general,  and  if  too  broad,  must  be  over- 
ruled. If  a  demurrer  is  bad  in  i)art,  it  must  be  wholly  overruled, 
as  it  covers  too  much.  Janes  vs.  Frosf,  1  Jacobs,  407;  cl/<7- 
forcTs  Pi,  214.  It  is  here  attempted  to  combine  together  seve- 
ral imaginary  causes  of  special  demurrer,  in  order  to  make  one 
good  cause  of  general  demurrer — a  strange  mode  of  argument. 

A  bill  may  be  filed  as  well  in  aid  of  an  execution  at  law,  to 
discover  property  that  may  be  subjected  to  execution,  as  to 
reach  more  equitable  intcicsts  and  choses  in  action.  Cuijler 
vs.  jyioreland,  G  Paige,  274;   Leroy  vs.  Rogers,  3  Paige,  230. 

A  bill  may  be  filed  for  the  sola  purpose  of  aiding  excjcution 
at  law,  that  is,  for  the  discovery  of  property,  that  it  may  be 
levied  on  by  the  execution;  in  such  case  the  execution  must 
be  out,  and  in  the  sheriff's  hands,  ready  to  be  levied  on  the 
properly,  when  the  discovery  is  made.  Leroy  vs.  Rogers,  3 
Paige,  234  to  237;  Jlnget  \'s.  Draper,  1  Vernon,  399,  398;  Siniih 
vs.  Lewis,  Mountford' s  Taylor,  0  Ves.,jun.,  788. 

Vol.  1.  30 


CASES  IN  CHANCERY. 

And  on  a  general  bill,  without  any  special  allegations,  de- 
fendant will  be  compelled  to  discover  all  his  property,  including 
lands  as  well  as  personal  estate,  lying  out  of  the  jurisdiction  of 
the  court.     3  Paige  Clu  Rep.,  23.5. 

Taking  out  a  new  execution,  will  not  prevent  the  plaint.fi 
from  filiiTg  a  creditor's  bill,  to  reach  equitable  interests,  as  long 
as  the  judgment  is  not  paid,  and  property  sufficient  to  satisfy 
it,  has  not  been  levied  on.      Cuyler  vs.  Mordand,  6  Paige,  214.. 

Bringing  suit  on  judgment,  after  return  of  an  execution  un- 
satisfied, and  obtaining  a  new  judgment,  will  not  prevent  a 
creditor  from  filing  a  creditor's  bill  on  the  original  judgment, 
as  the  original  judgment  is  not  thereby  extinguished.    Bates  vs. 

Lyons,  7  Paige,  86. 

After  judgment  and  an  execution  returned  unsatisfied,  if  the 
judgment  is  assigned,  the  assignee  may  file  a  creditor's  bill  in 
his  own  name,  and  without  taking  out  a  new  execution.  Grea- 
son  vs.  Gagr.,  7  Paige,  121  to  124. 

The  demurrer  must  be  overruled,  and  if  so,  a  receiver  will 
be  appointed  of  course;  {see  2  Paige,  343,  346;  7  Paige,  58,) 
where  Chancellor  Walworth  says  complainant  may  move  for 
an  injunction  or  receiver. 

If  defendant  is  allowed  to  answer,  it  should  be  on  the  pay- 
ment of  costs.     7  Paige,  86,  124. 

In  all  cases,  on  overruling  a  demurrer,  leave  to  answer  should 
be  given  only  on  the  condition  of  paying  costs  and  answering 
in  a  short  period;  such  is  the  invariable  rule  at  law.  (See  also, 
1  Hoffman  Pr.,  215 

The  Chancellor.  The  affidavit  filed  under  the  leave  of 
the  court,  must  be  considered  as  cumulative,  and  does  not  su- 
percede the  first.  They  both  are  annexed  to  the  bill,  and  stand 
of  record.  Treating  the  two  affidavits  as  of  force  and  subsist- 
ing, all  the  allegations  of  the  bill,  which  are  required  by  the 
rules  and  practice  of  the  court,'in  order  to  entitle  the  party  to 
file  and  prosecute  a  creditor's  bill  in  this  court,  are  sworn  to. 
This  is  sufficient  upon  a  general  demurrer.  The  existence  of 
the  judgment,  the  issuing  and  return  of  the  execution  unsatis- 
fied, and  the  allegation  that  the  defendant  has  equitable  inte- 


CASES  IN  CHANCERY.  235 

rests  to  the  value  of  one  hundred  dollars  and  more,  are  suffi-  p'"icirr„it. 
ciently  shown,  and  arc  sworn  to.  The  bill  is  not  multifarious.  dark 
A  bill  may  be  filed,  as  well  to  reach  mere  equitable  interests,  as  D^'is. 
in  aid  of  an  execution  at  law.  Cuyhr  vs.  Moreldnd,  6  Paige, 
274.  The  risht  to  file  a  creditor's  bill  havinfr  once  attached, 
by  the  return  of  the  execution  unsatisfied,  the  party  is  not  pre- 
vented from  commencing  proceedings  in  chancery,  by  the  issu- 
ing of  a  new  execution.  0  Paige,  274.  It  is  not  now  necessary 
to  decide,  whether  the  allegations  in  the  bill  are  sufficiently 
specific,  to  entitle  the  complainant  to  the  relief  he  seeks  in  aid 
of  his  execution.  The  bill,  as  a  creditor's  bill  merely,  is  suffi- 
cient upon  this  question.  A  general  demurrer  for  want  of 
equity,  cannot  be  sustained,  unless  the  court  is  satisfied  that  no 
discovery  or  proof  properly  called  for  by,  or  founded  on  the 
allegations  in  the  bill,  can  make  the  subject  matter  of  the  suit 
a  proper  case  for  equitable  cognizance.  Baker  vs.  Bingham,  3 
Paige,  246. 

Where  a  new  cause  of  demurrer  is  assigned,  o?-e  tenus,   the 
cause  must  be  co-extensive  with  the  demurrer. 

Demurrer  overruled,  and  reference  for  the  appointment  of  a 
receiver. 


236  CASES  IN  CHANCERY. 


John  A.  Pratt  and  another  vs.  Edward  R.  Campbell 

and  others. 

1840.  Where  the  Bank  of  Windsor  Imd  recovered  a  judgment  against  T.  E.,  for  S59,0C0,  and  C.  & 

First  Circuit.      ^    assuming  to  act  as   the  agents  and  ailorneys  of  the  bank,  eflecied  a  coiuproinise  with  T. 
"^■^^^/^"^^       E.,  10  pay  ©20,000,  and  T.  E.  assigned  and  dehvcred  over  to  C.  &  E.,  as  agents  and  atlor- 
^[j"  neys,  properly  and  securities  to  thiit  amount,  and  the  bank  afterwards  denied  the  authority 

Campbell.  of  C.  &  E.  to  muke  the  con.proniise,  and  T.  E.  afterwards  assigned  the  property  and  securi- 
ties to  P.  &  R.,  and  C.  &  E.  refused  to  re-deliver  the  property  and  securities  so  .issigned,  and 
were  proceeding  to  collect  and  dispose  of  the  same  -,  upon  hill  filed  by  P.  &  R.,  an  injunction 
was  granted  to  restrain  the  collection  and  disposition  of  the  property  and  securities  so  as- 
signed, and  the  chancellor  refused  to  dissolve  ir.junc.ion,  on  motion  to  dissolve  for  want  of 
equity  in  the  hill. 

DeceiLbjr  1.      Motion  to  (lissolve  injunction,  for  want  of  equity. 

The  bill   states,  that  in   December,  1838,  Thomas  Emerson 
was  largely  indebted  to  the  Bank  of  Windsor,  and  a  judgment 
had  been  recovered  against  him,  by  the  bank,  to  the  amount  of 
$59,000,  upon  which  the  latter  threatened  to  issue  a   ca.  sa.; 
that  E.  R.  Campbell  and  Rufus  Emerson  proposed  a  compro- 
mise, in  the  naine  of  the  bank;   that  they  represented  them- 
selves as  the  agents  and  attorneys  of  the  bank,  with  full  pow- 
er to  bind  their  principal;  during  the  negotiation  they  confer- 
red repeatedly  with  the  otiicers  of  the  bank,  and  Thomas  Em- 
erson refused  to  treat  vvitli  them  in  any  other  capacity;  on  this 
understanding  a  coiDpromise  was  made;  that  previously  to  this, 
the  bank  had  commenced  various  trustee  or  attachment  suits 
ao-ainst  the  property  and  credits  of  Thomas  Emerson,  in  the 
states  of  Ohio,  hidiana  and  Michigan;  that  by  the  terms  of  the 
compromise,  Thomas  Emerson  was  to  pay  $20,000,  in  appro- 
ved securities,  in  payment  and  satisfaction  of  the  bank's  claim 
against  him;  these  securities  were  to  be  assigned  to  E.  R.  Camp- 
bell and  Rufus  Emerson,  and  as  collateral  security  for  the  pay- 
ment of  ihe  assigned  sfcuiilies,  other  obligations  were  to  be 
transferred  to  said  Campbell  and  Emerson;  that  Royal  H.  Wal- 
ler, as  agent  and  attorney  of  all  the  parties,  was  to  be  sent  to  Mi- 
chigan to  change  and  secure  the  obligations  which  had  been  as- 
signed by  T.  Emerson,  in  payment  and  satisfaction  of  the  bank's 


CASES  IN  CHANCERY.  237 

claim  against  him,  and  which  were  principally  due  and  owing  ^'"'Circuit, 
from  residents  of  this  state;  that   the  hank  authorized   him  to       praii 
act  for  them  in  the  premises,  and  by  virtue  of  their  power  of   campbcii. 
attorney,  he  discontinued  the  attachment  suits,  changed   the 
form  of  the  securities  assigned  in  payment,  took  some  notes 
payable  to  Campbell  and  Emerson,  and  took,  also,  an  assign- 
ment to  them  of  some  bonds  and  mortgages;  after  doing  this, 
he  returned  to  Vermont.    The  bank  professed  to  be  dissatisfied, 
and  demanded  and  received  additional  securities  as  collateral  to 
those  assigned  in  payment  of  T.  Emerson's  dabt,  and  which 
had  been  thus  changed  by  said  R,  H.  Waller;   that  after  this, 
the  bank,  for  the  first  time,  repudiated  the  contract,  denied  the 
right  of  E.  R.  Campbell  and  Rufus  Emerson  to  bind  them  in 
the  premises,  and,  without  proffering  a  return  of  the  securities, 
proceeded  on  their  judgment  against  said  Thomas  Emerson, 
and  issued  execution  thereon;  that  at  the  same  time,  Campbell 
and  Emerson  took  similar  ground,  and  claimed  all   the  above 
securities  as  their  own  individual  property;  that  this  claim  was 
founded  principally  on  the  alterations  of  the  articles,  made  by 
them  fraudenily,  after  the  first  execution  thereof;  that  after  the 
perpetration  of  these  alledged  frauds,  and  the  entire  failure  of 
the  contract  between  Thomas  Emerson  and  the  bank,  he  as- 
signed all  the  securities  and  all  his  claim  against  the  bank  and 
said  Campbell  and  Emerson,  to  the  complainants,  who  had  in- 
curred heavy  res[)onsibilities  for  his  benefit.     The  complain- 
ants aver  the  utter   insolvency  of  Edward  R.  Campbell  and 
Rufus  Emerson;  they  aver  that  the  notes,  bonds,  &c.,  are  now 
in   Detroit,  and  some   of  them   in   process  of  collection,  and 
pray  that  said  Campbell  and  Emei'son  may  be  compelled  to  de- 
liver them  to  the  complainants;  that  the  attorneys  who  hold 
them  may  be  restrained  from  giving  ihem  back  to  Campbell 
and  Emerson,  and  from  paying  moneys  already  collected  to 
the  latter;  that  no  more  suits  may  be  brought  in  behalf  of 
Campbell  and  Emerson,  and  that  the  several  debtors  may  be 
decreed  to  pay  and  account  to  the  complainants;  and  may  be 
enjoined  from  paying  Campbell  and  Emerson. 

No  injunction  is  asked  to  restrain  the  proceedings  at  law, 
already  commenced. 


238  CASES  IN  CHANCERY. 

Firstcircuit.      Injunction  granted. 

p^.^^^  The  defendants  move  to  dissolve  the  injunction,  for  want  of 

cainpbeii.    cquity  in  tlie  bill. 

D.  Goodwin,  in  support  of  the  motion. 

1.  The  whole  case  is  based  on  the  assignment  from  Thomas 
Emerson  to  Emerson  and  Campbell,  which  is  attempted  to  be 
varied  as  to  its  legal  effect,  by  parol.      1  Peters^  R.,  1;  4  B.  8f 

a,5i3. 

This  cannot  be  done.  It  was  executed  with  a  full  knowledge 
of  the  facts,  and  deliberately.  Emerson  intended  to  execute 
just  such  an  instrument  at  the  time  of  its  execution,  and  the 
previous  conversations  and  negotiations  cannot  be  resorted  to 
to  control  it;  they  are  merged  in  it.  10  Eng.  com.  law  Rep., 
393;  Selvoin  JV.  P.,  107. 

As  to  the  insolvency,  it  is  alledged  to  have  existed  at  the 
*  time. 

2.  Upon  the  ground  assumed  by  the  complainants,  there  is 
no  consideration  for  the  agreement.  Emerson  owed  the  whole 
debt,  and  was  hound  legally  to  suffer  judgment  and  pay  it ;  and 
judgment  being  rendered,  to  pay  the  whole  amount.  If  a  false 
plea  were  interposed  for  delay,  the  court,  if  such  were  known 
to  them  to  be  the  fact,  would  strike  it  out  without  ceremony, 
and  the  agreement  to  receive  a  less  sum  than  the  amount  due, 
would  be  no  satisfaction  or  discharge,  even  if  the  lesser  sum 
were  paid,  and  the  damages  upon  such  a  covenant  would  be 
merely  nominal.  Chitly  on  Con.,  277;  17  Johns.  R.,  169;  5 
East.  R.,  252;  4  JS.  <^  C,  513;   1  lb.,  426. 

3.  Thomas  Emerson  makes  no  complaint  as  to  the  assignment 
or  the  present  disposition  of  the  bonds,  &c.  It  is  not  compe- 
tent for  his  assignee  to  do  so,  of  his  own  motion;  on  the  con- 
trary, there  appears  an  after  consent  on  the  part  of  Emerson. 

T.  RoMEYN,  contra. 

The  Chancellor.  The  facts  presented  in  this  case,  are 
sufficient  to  retain  the  injunction,  and  entitle  the  complainants 
to  an  answer. 


CASES  IN  CHANCERY.  239 

After  Campbell  and  llufus  Emerson  had  obtained  an  assign-  ^'"■"<-"'f''""- 
went  and  the  possession  of  the  property  of  Thomas  Emerson,       prau 
jy  assuming  to  act  as  the  authorized  agents  and  attorneys  of  Caiiipi>eii. 
the  Bank  of  Windsor,  the  bank  refused  to  perform  the  condi- 
tions on  which  the  assignment  was  made,  and  denied  the  au- 
thority of  Campbell  and  Emerson  to  act  as  the  agents  of  the 
bank  in  the  premises,  and  both  the  bank  and  Campbell  and  Em- 
erson, who  assumed  to  act  as  the  agents  of  the  bank,  now  re- 
fuse to  return  the  property,  and  are  proceeding  to  collect  the 
demands,  and  use  the  property  assigned  by  Thomas  Emerson. 

It  also  appears,  that  subsi-'quent  to  the  disavowal  of  the  au- 
thorif)'  of  Campbell  and  Emerson  by  the  bank,  to  act  as  its 
agents  in  the  premises,  and  denial  of  their  authority  to  make 
the  compromise,  Thomas  Emerson  has  assigned  the  property 
and  demands  to  the  complainants,  who  claim  to  be  the  legal 
and  bona  fide  owners  of  the  same. 

The  facts  presented  by  the  bill,  are  sufficient  to  authorize  the 
retaining  of  the  injunction,  and  the  motion  to  dissolve  must 
be  denied. 

Motion  denied. 


240  CASES  IN  CHANCERY. 


Clark  &i  Tillinghast  vs.  the  Saginaw  City  Bank 
and  Norman  Little. 

1840.  A  defendant  may  plead  to  one  part  of  the  bill,  and  answer  to  another  part ;  but  these  defences 

First    ircuu.      ^^^^  clearly  refer  to  separate  and  distinct  parts  of  the  bill. 

Cl.irk  &.  Til-  ^^  *''^"  ^'''^  ^"''^^'cr  Juid  pica  arc  to  thesame  parts  of  the  bill,  the  answer  overrules  the  plea. 
linghast 

saeimtwcity  The  l;ill  in  this  case  is  filed  for  the  collection  of  certain 
Normau'Lit-  ^IHs  and  drafts  of  the  Saginaw  city  bank;  for  a  discovery,  and 
the  removal  of  Norman  Little,  the  receiver  heretofore  appoin- 
ted, and  prays  for  the  appointment  of  a  new  receiver,  &c. 
December  2.  rpj^g  defendants  plead  to  all  the  discovery  prayed  in  the  bill, 
and  to  all  the  relief  prayed,  except  as  to  the  dividend  to  be 
received  from  the  receiver,  and  answer  to  nearly  all  the  mat- 
ters charged  in  the  bill. 

The  case  was  set  down  for  agreement  on  the  plea,  under 
the  provision  of  rule  32. 

E.  C.  Seaman,  for  complainants. 

The  answer  overrules  the  plea.  J\lit.  PL,  319,  320;  Slory^s 
Eg.  PL,  505,  50G. 

S.  G.  Watson,  for  defendants. 

The  Chancelloh.  The  defendants  may  plead  to  one  part 
of  the  bill,  and  answer  to  another  part;  but  these  defences 
must  clearly  refer  to  separate  and  distinct  parts  of  the  bill. 
If  the  defendants  have  answered  to  any  part  of  the  bill  to 
which  they  have  pleaded,  the  answer  overrules  the  plea.  J^it. 
PL,  310,  320.   (1) 

The  plea  in  this  case,  extends  to  all  the  discovery,  and  near- 
ly all  the  relief  prayed.  In  fact,  the  plea  and  answer  appear 
to  apply  to  the  same  parts  of,  and  each  to  nearly  the  whole 
bill;  the  answer  overrules  the  plea. 

Plea  overruled. 

(1)  SeeJametVH.  Sadgrove,  1  Sim.  if  .SYu.,1,t  Cond.Eq.  Ch.Rep.,3;  Morrison  vs.  Tumour, 
18  Vet.,  175;  Bowas  vs.  CurUr,  4  Ves..  91  ,  BayUy  vs.  Adams,  6  Vtt.,  5?6;  Watkin*  vs.  Stone, 
2  Sim.  if  Stu.,  560  ;  1  Cond.  Eq.  C'k.  JUp.,  588. 


CASES  JN  CHANCERY.  241 


Thomas  B.  W.  Stockto.v  and  otiicrs  va.  Garunek  D. 
Williams  and  otlicrs. 

A  regiilnr  order  lo   tiikc  llir   lull  ns  confcaseil,  wil!   not  be  act  iiMicIc  upon  u  simple  uirulavit  of  IfllO. 

nicritii,  ulllioiigli  iiii  cxcusf  is  t;iven  for  Uu-dcfiiull.  rirsi  Circuit. 

In  such  case,  the  ilfft-ndiinl  iiiuat  cither  proiluce  lUc  sworn  niiswcr  which  ho  pronoses  to  put      ^.     , . 

'  111-  &<io('Klon 

hi,  or  must  in  his  petilion  or  iilliduvil,  suite  the  iinliire  of  his  defence,  and  his  Ijchef  In  the  n. 

truth  of  the  iniitlcrs  consiiiuiing  such  defence.  dliums. 

The  bill  ill  this  case  was  taken,  pro  confesso,  ag.-iiiist  all  the  uecemuer  2. 
defendants;  cltifetulant  Williams  movt's  to  st't  asidti  lh(>  order, 
pro  confesso,  and  for  kiavc  to  aiisw tM\  wliidi  iimtion  is  I'onndcd 
on  the  atViclavils  of  (lelciiilaiit  Williams  and  his  solicilois.  Will- 
iams in  liis  allidavit,  states,  that  he  has  I'ully  and  lairh'  stated 
liis  defence  to  iiis  solicitors,  and  is  advised  hy  his  said  solicit- 
ors, and  veril\'  hclicvcs  that  he  has  a  good  and  stihstaiitial  de- 
fence on  the  merits.  It)  the  com|>lainaiit's  hill  til((>m|ilaiiit,  and 
that  great  injustic(;  would  ho  iloiu\  if  he  slionid  ho  pi'ochidod 
from  j)utting  in  an  answiM',  and  thoichy  ha\ingan  op|)()rtLini  ty 
of  contesting  the  validity  of  iho  claim  sot  up  hy  the  rom|i|ain- 
ants;   that  the  pro|ioi(y  in  controversy,  is  of  groat  \aliio,  ilv^c. 

Hunt  aiul  Watson,  tlio  solicitors  for  Williams,  in  llicir  aditla- 
vits  excuse  the  tlolatilt,  on  iho  vioniul  o(  a  mis  i|i|ii-  hcn-^ion  of 
the  practice,  &c.,  and  also  slato  ihoir  holiof  that  the  dolond- 
ant,  Williams,  has  a  defence  on   the  merits,  &c. 

Hunt  and  Watson,  in  support  of  the  motion. 

Fraser  and  Romkyn,  opposed  the  motion. 

Before  the  court  will  open  an  onlor  to  take  iht."  hill,  pro  con- 
fesso, it  will  rotpiire  that  iho  answi  r  iniiposod  lo  lie  led,  he 
exhihited.      1  //o//w.  /v.,  :>:);{;    llmir  vs.   Ogiivic,  11    /V.^'.,  77. 

Tiie  court  will  also  iiMpiiro  lo  hi:  sati.-fied,  hoih  that  the 
answer  is  matciial,  and  apparently  In!'.       1    11  ffin.   //•.,  55  5. 

The  defendant  should  have  slated  ilio  iiatiir  ;  o!  his  defence, 
before  making  this  moiion.  Ltinsing  vs.  JMcPhcrson,  3  Johns. 
a  R.,  424;   Hunt  vs.   Wallu^iS  Pai^e,  »72. 

Vol.  I.  31 


242  CASES  IN  CHANCERY. 

First  Circuit.  The  CHANCELLOR.  A  regular  Order  to  take  the  bill  as  con- 
fessed, will  not  be  set  aside  upon  a  simple  affidavit  of  merits, 
although  an  excuse  is  given  for  the  default.  In  such  cases, 
the  defendant  must  either  produce  the  sworn  answer  which  he 
proposes  to  put  in,  so  that  the  court  may  see  that  he  has  mer- 
its, or  must,  in  his  petition  or  affidavit,  state  the  nature  of  his 
defence,  and  his  belief  in  the  truth  of  the  matters  constituting 
such  defence,  so  far,  at  least,  as  to  enable  the  court  to  see  that 
in  justice,  will  probably  be  done  if  the  order  to  take  the  bill  as 
confessed,  is  permitted  to  stand.  Hunt  vs.  Wallis,  6  Paige, 
371;  Lansing  vs.  McPherson,  3  Johns.  C/i.  R.,  424. 

The  defendant  may  have  twenty  days  to  exhibit  his  answer, 
under  the  circumstances  of  this  case. 


The  answer  having  been  exhibited  within  the  twenty  days, 
the  chancellor  opened  the  default,  and  permitted  the  same  to 
be  filed,  on  payment  of  costs. 


CASES  IN  CHANCERY.  243 


Clinton  E.  Atwater  and  otliors  vs.  James  K.  Kix- 

MAN  and  others 

Where  no  preliminary  order  ia  required,  it  is  not  necessary  that  bills  should  be  sworn  to,  al-         1841. 

though  the  answer  under  oath  is  not  waived.  Second  Cir- 

"  cult. 

Where,  in  a  foreclosure  of  a  mortgasrc,  by  adverliscmcnt  under  tlie  statute,  a  mistake  occurs,  V^^^.^^^/ 

which  renders  Itie  proceedings  irregular  ;ind  void^ihlc,  the  morlg.-igee  lias  a  right  to  waive      Atwater 

those  proceedings,  and  commence  denovo,  either  by  advertisement  under  llie  statute,  or  may      Kiimian 

avail  himself  of  the  right  he  had  in  the  first  instance,  to  seek  his  remedy  in  this  court. 

This  was  a  bill  to  for^ploBo  a  moitv^uge,  uiid  slates,  ihat  about  •''^"""y^®- 
May  28,  1838,  Carl  Brockhousen  and  wife,  executed  a  mort- 
gage to  Claiion  E.  Atwater  and  Henry  A.  Delavan,  the  com- 
plainants, (to  secure  the  payment  of  four  hundred  dollars,  in 
six  months  from  date,)  on  the  south-west  quarter  of  the  north- 
east fractional  quarter  of  section  two,  in  township  six,  south 
of  range  three  west,  containing  forty  acres;  also,  the  north- 
east quarter  of  the  south-west  quarter  of  section  number  two, 
aforesaid,  containing  forty  acres;  that  the  mortgage  was  duly 
recorded.  &c.  The  bill  is  in  the  usual  form  for  a  foreclosure, 
and  does  not  waive  the  necessity  of  the  defendants'  answerinf^ 
on  oath.  It  further  states,  that,  from  the  examination  of  the 
records,  it  appears  that  James  K.  Kinman  had  purchased  the 
said  mortgaged  premises  for  the  sum  of  twelve  hundred  dol- 
lars, and  received  a  deed  for  the  same,  about  March  28,  1839, 
which  deed  was  on  record. 

The  bill  further  states,  that  complainants  had  foreclosed  their 
mortgage  by  advertisement  under  the  stafnfe,  and  that  the 
mortgaged  premises  were  sold,  under  such  advertisement,  April 
9,  1839.  at  the  court  house  in  the  county  of  Hillsdale,  where 
the  mortgaged  premises  were  situated,  by  the  sherifl'  of  said 
county,  and  bid  in  by  Salem  T.  King,  agent  and  attorney  for 
complainants,  for  the  sum  of  four  hundred  and  forty-seven  dol- 
lars and  sixty-three  cents;  that  the  usual  certificate  had  been 
given  by  the  sheriff,  which  certificate,  affidavits  of  publication, 
&c.,  were  duly  recorded. 

That  complainants  had  subsequently  ascertained,  that  the 


cuit. 


244  CASES  IN  CHANCERY. 

Second  cir-  sale  was  irregular,  in  as  much  as  both  lots  were  sold  together, 
instead  of  being  sold  separately,  pursuant  to  the  provisions  of 

the  statute. 

The  bill  further  states,  that  Kinman  had  declared  the  sale  to 
be  irregular,  and  that  complainants  would  be  compelled  to 
foreclose  again,  and  that  he  had  given  complainants  to  under- 
stand, that  he  should  disregard  the  sale  entirely,  and  that  com- 
plainants are  apprehensive  that  if  the  sale  should  be  consider- 
ed voidable  only,  and  liable  to  be  made  good  by  the  acquies- 
cence of  the  parties,  yet,  that  the  defendants  would  refuse  to 
redeem  the  said  premises,  tind  that  they  would  contest  any 
proceedings  at  law,  to  obtain  possession  of  said  premises. 

The  defendants  demur. 

Lee  and  Pratt,  in  support  of  the  demurrer. 

1.  Complainants'  bill  is  not  sw^orn  to  by  complainants,  their 
agent,  attorney,  or  solicitor,  nor  the  answer  of  the  defendants 
on  oath  waived;  the  demurrer,  therefore,  is  well  taken.  This 
point  is  settled  by  the  thirteenth  rule  of  this  court.  It  is  also 
well  established  by  the  practice  and  decisions  of  the  court  of 
chancery.      Lansing  vs.  Pine,  4  Paige  Ch.  R.,  639. 

2.  If  the  bill  filed  was  verified  by  the  oath  of  complainants, 
or  any  other  person,  the  defendants  were  not  bound  to  look 
beyond  the  copy  of  the  bill  served  on  their  solicitor.  Lansing 
vs.  Pine,  4  Paige  Ch.  R.,  639. 

3.  In  the  first  place,  the  complainants  had  their  election  to 
foreclose  their  mortgage  at  law  or  in  equity,  and  having  made 
their  election  and  forecloocd  at  law,  sold  and  bid  in  the  premi- 
ses;   they  cannot  now  foreclose  again  in  this  court. 

4.  The  complainants  have  not  made  such  a  case,  upon  the 
face  of  their  bill,  as  entitles  them  to  any  relief  in  this  court. 
The  complainants  do  not  ask  to  have  their  foreclosure  at  law, 
set  aside  at  their  own  expense;  nor  does  it  appear  that  the 
complainants  have  ever  asked  the  defendants  to  waive,  or  in 
any  way  release  any  error  in  the  proceeding  at  Lw.  Nor  does 
it  appear,  but  that  the  defendants  would  have  been  willing,  at 


CASES  IN  CHAiNCERY.  245 


cim. 

Atwater 

vs. 
Kiniiiai). 


any  time,  to  have  released  any  error,  if  desired  or  requested,  ftecon.icir 
Nor  does  it  appear,  but  that  the   defendants  intend,  in  good 
faith,  to  pay  up  the  mortgage  and  redeem  the  premises,  before 
the  time  for  the  redemption  expires. 

5.  If  there  was  an  error  in  the  proceeding  to  foreclose  at 
law,  it  does  not  render  the  foreclosure  void;  at  most,  the  pro- 
ceedings are  only  voidable;  and,  therefore,  until  the  defend- 
ants take  some  steps,  to  avoid  the  validity  of  the  foreclosure 
and  sale,  the  complainants  cannot,  in  equity,  ask  permission  of 
this  court  to  avoid  their  own  proceedings.  A  foreclosure  at 
law  is  in  the  nature  of  a  judicial  proceeding,  or  any  other  pro- 
ceeding at  law. 

A  bona  fide  purchaser  under  a  judicial  or  other  sale  at  law. 
is  always  protected,  where  there  is  jurisdiction.  And  this  ques- 
tion is  fully  settled  in  the  case  of  the  American  Insurance  Co. 
vs.  Fisk,  1  Paige  C/i.  R.,  90;  and  in  which  case  the  bill  was 
dismissed  by  the  chancellor  on  that  ground. 

George  C.  Gibbs,  for  complainants. 

The  Chancellor.  Where  no  preliminary  order  is  requi- 
red, it  is  not  necessary  that  bills  should  be  sworn  to,  although 
the  answer  under  oath  is  not  waived.  This  is  not  required 
by  the  English  practice,  or  by  the  rules  of  this  court,  as  they 
now  stand. 

As  to  the  other  point  raised  by  the  demurrer,  it  is  alledged 
that,  in  the  proceedings  to  foreclose  under  the  statute  by  ad- 
vertisement, a  mistake  occurred,  which  renders  the  proceed- 
ings irregular  and  voidable. 

It  would  certainly  be  in  the  power  of  the  mortgagee  to  w^aive 
those  proceedings  and  commence  de  novo,  under  the  statute. 
And  this  being  undoubtedly  competent,  I  can  see  no  reason 
why  he  may  not  avail  himself  of  the  right  he  had  in  the  first 
instance,  and  seek  his  remedy  in  this  court.  If  he  seeks  his 
remedy  here,  he  of  course  waives  the  proceeding  under  the 
statute,  and  all  claim  for  costs  under  that  proceeding. 

I  can  see  no  reason  for  the  argument,  that,  by  first  proceed- 


2^  CASES  IN  CHANCERY. 

Se:o,d ar-  [ng  Under  the  statute,  which  proceeding,  by  mistake  or  acci- 
dent, is  inoperative  or  void,  that  the  party  has  made  his  elec- 
tion, and  cannot  have  relief  here. 

The  demurrer  must  be  overruled  with  costs. 


CASES  IN  CHANCERY.  247 


Charles  Thayer  and  others  vs.  Marcus  Lane  ad- 
ministrator of  the  estate  of  iSamuel  Wheeler  and 
others. 

Courts  of  equity  have  jurisdiction  nnd  will   entertain  proceedings   for  partition,  where  a  por-  1641. 

tion  of  the  property  has  changed  hands  and  the  rights  and  interests  of  tlie  several  parties  '  ■      '  " 

bave  become  complicated  and  are  in  rlispute.  v^^^r-sr-'^fc^ 

Where  a  demurrer  is  to  the  whole  discovery  and  rclirf  prayed  by  the  bill,  if  the  complainant  is       Thayer 
entitled  to  any  part  of  the  relief  the  demurrer  must  be  overruled.  line 

Where  an  administrator  under  a  license  from  a  judge  of  probate  was  proceeding  to  sell  the  in- 
terest of  the  intcst.ite  in  sixteen  village  lots,  which  interest  was  stated  to  l:c  one  undivided 
half,  \ipon  a  bill  tiled  by  the  other  parlies  interested,  staling  that  the  intestate  owned  only  an 
undivided  interest  of  one-third,  an  injunction  was  granted  to  restrain  the  sale  and  the  chan- 
eellor  refused  to  dissolve  the  injunction  until  the  interest  of  the  intestate  was  ascertained  and 
settled. 

The  bill  in  this  case  was  filed  for  a  partition,  and  states  that  JanuaryM. 
Samuel  Wheeler  and  Richard  H.  Root  (both  deceased)  of  the 
slate  of  Ohio,  were,  in  their  lifetime,  seized  in  fee  as  tenants  in 
common,  of  certain  village  lots  in  the  village  of  Ann  Arbor,  in 
the  state  of  Michigan;  that  said  Wheeler  died  intestate,  lea- 
ving five  children,  his  heirs  at  law.  That  Root  was  seized  of 
two  equal  undivided  third  parts  of  said  village  lots,  and  Whee- 
ler was  seized  of  the  other  equal  undivided  third  part  thereof. 
That  Charles  Wheeler,  brother  to  S.  W^ieeler,  was  appointed 
administrator  upon  the  estate  of  S.  Wheeler,  in  the  state  of 
Ohio,  and  was  also  appointed  guardian  for  Amanda  Wheeler, 
one  of  the  heirs. 

That  about  June  18,  1834,  William  IMunroe,  of  the  state  of 
Ohio,  was  treating  with  Root  for  the  purchase  of  his  interest 
in  the  lots;  that  it  was  finally  agreed  between  Root,  Munroe 
and  Wheeler,  administrator,  that  he  Wheeler,  should  have  his 
first  choice  of  four  of  the  lots  for  and  in  behalf  of  the  heirs  of 
S.  Wheeler,  and  that  Root  should  take  the  remaining  twelve 
for  his  portion;  and  that  C.  Wheeler  and  Munroe  should  pro- 
ceed from  Madison  in  the  state  of  Ohio,  (where  this  arrange- 
ment was  made,)  to  Ann  Arbor,  in  the  state  of  Michigan,  and 
make  partition  according  to  said  understanding  and  agreement. 


248  CASES  IN  CHANCERY. 


Second  cir-  That  it  was  the  express  agreement  that  the  four  lots  to  bs  first 

cuit.  ... 

v^^^s^r-^^  selected  were  equal  to  one-third  part  of  the  sixteen  lots  in 
Thayer  value.  That  Root  and  wife  conveyed  to  Munroe,  by  deed, 
^''"^'  twelve  equal  undivided  sixteenth  parts  of  said  lands,  to  be  held 
in  comnnon  with  the  heirs  of  S.  Wheeler.  That  soon  after- 
wards Wheeler,  administrator,  and  Munroe  proceeded  to  Ann 
Arbor  and  made  partition,  and  Wheeler,  the  administrator 
chose  and  selected  lots  number  15  and  16  in  block  number  2, 
north  of  Huron  street,  range  6,  and  lots  number  4  and  5  in 
block  3,  north  of  Huron  street,  range  3,  as  the  four  lots  to  be 
by  him  selected  for  the  heirs,  and  that  Munroe  accepted  and 
received  the  other  twelve  lots  as  his  portion  and  assented  to 
such  partition  and  division. 

That  September  10,  1834,  Muni-oe  deeded  to  complainant, 
Charles  Thayer,  the  said  twelve  lots;  that,  the  deeds  from  Root 
and  wife  to  Munroe  and  from  Munroe  to  complainants  were 
duly  recorded,  &c. ;  that  the  deed  from  Munroe  to  complainant, 
Thayer,  was  intended  to  convey  to  complainant,  Thayer,  the 
entire  interest  Munroe  had  in  said  16  lots.  That  complainant, 
Thayer,  took  immediate  possession  of  the  lots,  and  continued  in 
possession;  that  in  the  month  of  Dec,  1834,  Thayer  conveyed 
lots  number  6,7  and  8  in  blocks,  to  complainant,  George  Kline- 
dob;  lots  5  and  6  in  block  2  to  William  J.  Rroun;  lot  num- 
ber 4  to  Caroline  BroWn;  the  deeds  of  which  said  several  lots, 
were  duly  recorded,  &c.  That  lots  number  4  and  5  had  since, 
by  several  intermediate  conveyances,  been  conveyed  to  com- 
plainant, George  Ward;  that  lot  number  6  has  been  conveyed 
to  complainant,  William  F.  Leaman,  by  deed  bearing  date 
December  6,  1836,  recorded  April  8,  1^37;  that  complainant, 
Thayer,  conveyed  lots  7  and  10  in  block  3,  to  A.  Burr  Harring- 
ton, and  he  conveyed  the  same  to  Samuel  Hamlet,  who  then 
owned  and  occupied  the  same;  that  the  purchasers  of  said  lots 
respectively  had  taken  possession  of  the  same  and  made  valua- 
ble improvements  in  good  faith  and  with  the  full  belief  that 
the  purchasers  thereof  respectively  had  good  and  perfect  titles 
to  the  same.  Bill  states  that  partition  may  be  made  of  the 
said  sixteen  lots  so  as  to  save  to  complainants,  their  respective 


vs. 
Lane. 


CASES  IN  CHANCERY.  249 

improvements,  and  still  do  justice  to  all  persons  interested  in  secon(i  cir- 
said  premises.  The  bill  further  states  that  Marcus  Lane  has  >^^--v-^^ 
been  appointed  administrator  of  said  Samuel  Wheeler,  decea-  Thayer 
sed,  by  the  judge  of  probate  of  the  county  of  Washtenaw, 
state  of  Michigan,  and  that  ho  had  published  notice  that  he 
would  expose  for  sale  at  public  vendue  at  the  court  house  in 
the  village  of  Ann  Arbor,  on  the  third  day  of  August  instant, 
the  equal  undivided  half  of  all  of  said  lots,  by  virtue  of  a  power 
and  licenso  granted  by  the  judge  of  probate  of  the  county  of 
Washtenaw,  aforesaid,  authorizing  the  sale  of  the  real  estate 
belonging  to  the  estate  of  the  said  Samuel  Wheeler,  deceased. 

An  injunction  was  granted  to  restrain  the  sale. 

Defendant  Lane,  the  administrator  demurred  to  so  much  of 
the  bill  as  prays  for  relief  and  discovery,  and  to  the  agreement 
in  the  bill  mentioned  between  Charles  Wheeler  and  William 
Munroe  for  a  division  and  partition  of  the  premises,  and  assigns 
for  causes  of  demurrer,  that  the  complainants  have  a  full  and 
complete  remedy  at  law  if  tliey  are  entitled  to  any  relief. 

The  defendant,  Lane,  also  answers  and  admits,  that  Samuel 
Wheeler  and  11.  H.  Root  were  seized  of  the  premises  in  ques- 
tion as  tenants  in  common,  in  equal  proportions;  as  to  the 
statement  in  the  bill,  that  Wheeler  owned  one  third  and  Root 
two  thirds  undivided,  he  knows  not  and  cannot  answer  as  to 
his  belief  or  otherwise.  Admits  the  death  of  Samuel  Wheeler, 
leaving  certain  persons  his  heirs  at  law  whose  names  he  states 
are  unknown  to  him;  admits  that  the  complainants  and  the  de- 
fendant Howlet  have  acquired  a  title  to  an  undivided  interest 
in  the  premises,  but  how  or  by  what  means,  or  what  title  or 
interest  they  have  acquired  he  knows  not,  and  cannot  answer 
as  to  his  belief  or  otherwise;  that  he  has  been  informed  and 
believes,  that  Ward,  Klinedoband  Leaman,  complainants,  have 
made  valuable  improvements  on  some  parts  of  the  premises, 
but  upon  which  part  he  does  not  know,  and  cannot  answer. 

Admits  his  appointment  as  administrator,  and  sets  forth  all 
the  proceedings  under  that  appointment,  and  states  that  he  has 
no  estate  or  interest  in  the  pr>jmises  except  as  administrator; 
admits  that  he  gave  notice  of  his  intention  to  sell  the  equal  un- 

[VoL.  I.]  32 


250  CASES  IN"  CHANCERY. 


Second  cir-  divided  half  part  of  the  premises  under  an  order  fronn  the  judge 

K^JC^^^  of  probate  for  the  payment  of  the  debts  due  from  the  estate  of 

™"     Samuel  Wheeler,  which  estate  is  reported  insolvent,  and  states 

^*"^"      that  he  intends  to  sell  as  soon  as  the  injunction   is  dissolved; 

states  that  he  has  paid  all  taxes  which  he  could  find  returned 

to  the  register's  office,  against  the  premises,  without  regard  to 

the  interests  of  the  complainants  or  any  other  person. 

The  cause  was  heard  upon  the  demurrer  and  a  motion  to 
dissolve  the  injunction. 

Marcus  Lane  in  support  of  the  demurrer  and  motion  to 
dissolve  the  injunction. 

1st.  It  does  not  appear  that  Charles  Wheeler  was  appointed 
administrator  by  any  court  or  authority  having  power  to  ap- 
point. 

2d.  It  does  not  appear  that  said  Charles,  if  appointed  by  au- 
thority, accepted  of  the  appointment,  and  entered  upon  the 
duties  of  his  office. 

3d.  It  does  not  appear  that  said  Charles,  if  appointed  and 
qualified  according  to  the  laws  of  Ohio,  had  any  power  or  au- 
thority to  lease,  sell,  divide  or  control  the  real  estate  of  his 
intestate. 

4th.  It  does  not  appear  that  said  Charles  Wheeler  was  ever 
qualified  or  authorized  to  administer  upon  the  estate  of  said 
intestate  within  the  state  of  Michigan. 

5th.  That  an  administrator,  appointed  according  to  the  laws 
of  another  state,  has  no  power,  or  authority,  or  control  over 
the  estate  of  an  intestate  within  this  state,  unless  specially  au- 
thorized by  a  court  of  competent  jurisdiction  in  this  state.  3 
Mass.  Rep.,  514;  81  lb.,  18;  11  Ih.,  313;  10  Wlieaton  Rep., 
192;   1  Cranch,  259. 

6lh.  That  an  administrator,  appointed  according  to  the  laws 
of  this  state  has  no  power  or  authority  to  divide,  sell  or  other- 
wise dispose  of  the  lands  of  his  intestate,  except  for  the  purpose 
of  paying  the  debts  of  his  intestate.  4  Mass.  Rep.,  358;  1  lb., 
45,  46;  2  lb.,  478. 

7h.  It  does  not  appear  that  the  partition  was  reduced  to 


Thayer 

vs. 

hixac. 


CASES  IN  CHANCERY.  251 

writing,  or  that  it  ^vas  made  by  said  Charles  in  his  capacity  of  ^'^*^°"[!  ^'^" 
administrator. 

8th.  Tliat  complainants  have  a  full  and  ample  remedy  at 
law. 

Miles  and  Wilsox,  contra. 

1st.  As  to  the  demurrer. 

A  court  of  chancery  has  concurrent  jurisdiction  with  a  court 
of  law,  to  compel  partition  between  tenants  in  common.  1  Mad. 
Ch.,  244,  Coleman  vs.  Ilulchenson,  3  Bibb.,  209. 

The  title  here  is  not  disputed,  the  only  question  is  as  to  the 
extent  of  the  interest  of  the  respective  parties.  The  complain- 
ants' right  to  one  equal  undivided  half  part  of  the  premises,  is 
admitted  by  the  answer. 

Must  the  answer  of  all  the  defendants  be  in,  before  motion 
to  dissolve  the  injunction  can  be  sustained?  the  other  defend- 
ants are  not  involved  in  the  charge  against  Lane,  upon  which 
the  injiinction  \v;.s  granted. 

The  answer  does  not  disprove  the  facts  stated  in  the  bill. 

The  defendant,  Lane,  has  omitted  to  answer  the  statements 
in  the  bill: 

1st.  That  Charles  Wheeler  was  appointed  administrator  in 
Ohio,  and  also  guardian  to  one  of  the  minor  heirs. 

2d.  That  Charles  Wheeler  agreed  with  R.  H.  Root,  the 
other  tenant  in  common,  to  make  partition  of  the  sixteen  lots; 
the  demurrer  only  admits  the  agreement  between  Charles 
Wheeler  and  Munroe. 

3d.  That  Charles  Wheeler  and  Munroe  made  partition;  that 

Munroe  immediately  gave  a  deed  of  the  twelve  lots  which 
fell  to  his  share,  to  Thayer,  the  complainant,  who  took  posses- 
sion. 

The  defendant  admits  that  complainants  and  Howlet,  one  of 
the  defendants,  have  acquired  a  title  to  an  undivided  interest 
in  the  premises;  that  War  I.  Kline:lob  an:l  Seaman  have  made 
improvements,  but  leaves  unanswered  the  fact  that  Howlet, 
the  defendant,  has  made  improvements  on  his  lot. 

The  fact  that  the  four  lots  remaining  unsold  by  Thayer,  are 


vs. 
LiaDe. 


252  CASES  IN  CHANCERY. 

^^"^cuii^"^'  of  equal  value  with  any  of  the  eight  sold  by  him,  setting  aside 
■s^^v'-^t-'  improvements,  is  unanswered. 

n>er  r^^^  material  fact,  that  Root  was  seized  of  two  third  parts 
and  Samuel  Wheeler  of  one  third  part  of  the  premises,  is  left 
unanswered;  the  defendant,  Lane,  does  not  even  state  that  he  be- 
lieves it  untrue.  [SeeJijithorp  vs.  Comstock,  Hop.  Ch.  Rep.,  148.) 
Tlie  defendant  insists  that  the  complainants  can  only  claim, 
under  the  legal  title,  and  that  they  must  go  to  the  law  courts, 
and  have  partition  under  that  title.  [See  Madd.  Ch.,  3d  Amer. 
ed.,  244;    Cox  vs.  Sinith,  A  John.  Ch.  Rep.,  271.) 

But  here  has  been  a  partition  by  parol,  and  a  long  continued 
possession   under  it.     The  defendant   has  not  answered  this 
part  of  the   bill;  he  does  not  deny  Thayer's  possession,  and 
those  holding  under  him;  and  to  the  charge  that  he,  as  admi- 
nistrator,  has    taken  possession  of  the  four  lots  selected  by 
Charles  Wheeler,  and  has  paid  the  taxes  thereon,  he  answers 
evasively  as  to  the  payment  of  taxes,  and  as  to  taking  posses- 
sion,  there  is  no  answer.      [See  Jackson  Ex.  dem.,  Antell and 
wife  vs.  Brown,  3  John.  Ch.  Rep.,  453,  as  to  partition  by  parol.) 
But  was  Charles  Wheeler,  as  administrator  and  guardian, 
authorized  to  act  in  making  partition?  the  validity  of  his  acts 
is  not  £[uestioned  by  the  answer;  that  he  did  act  in  making  the 
partition,  is  admitted  by  the  demurrer;  and  that  the  defendant, 
Lane,  has  acquiesced  in  this  division,  and  ratified  the  partition, 
appears  from  the  fact  not  denied  by  the  answer,  that  he  took 
possession  of  the  four  lots  selected  by  Charles  Wheeler  for  the 
heirs.      (<S'ee  Jackson  vs.  Richtmyer,  13  John.  Rep.,  367.) 

But  further  as  to  the  improvements.  Partition  may  be  made, 
reserving  to  the  complainants  their  improvements,  without 
prejudice  to  the  other  persons  concerned;  this  is  not  denied. 
On  a  partition,  every  part  of  the  estate  need  not  be  divided. 
1  Madd.  Ch.,  245. 

The  Chancellor.  That  courts  of  equity  have  jurisdiction 
in  cases  for  partition,  where  the  facts  are  like  those  here  pre- 
sented, is  well  settled. 

The  demurrer  here  being  to  the  whole  discovery  and  relief, 
cannot  be  sustained;  the  demurrer  must,  therefore,  be  over- 
ruled. 


Lune. 


CASES  IN  CHANCERY.  253 

As  to  the  injunction,  I  have  had  some  doubt  whether  the  dc-  ®"°"i?.^'''' 
fendant,  Lane,  should  not  be  permitted  tJ  sell  whatever  inte-  ^-^^v^^^ 

•  Tliayer 

rest  the  estate  may  have  in  the  premises;  but  as  the  amount 
of  the  interest  of  the  several  parties  is  disputed,  it  being  al- 
ledged  in  the  bill  that  the  heirs  of  Wheeler  are  in  fact  entitled 
to  but  one-third  of  the  premises,  and  the  defendant,  Lane, 
proposing  to  sell  one  half,  a  sale  would  further  embarrass  the 
title,  and  I  think  the  injunction  should  be  retained  until  those 
rights  are  ascertained  and  settled. 

Demurrer  overruled  and  injunction  retained. 


254  CASES  IN  CHANCERY. 


Pratt  and  Barker  vs.  the  Bank  of  Windsor. 

1P41.         The  f  ervice  of  a  subpoena  upon  a  defendant  out  of  tbe  state  is  irregular. 
First  Circuit. 

"-.^^v^^  This  was  a  motion  to  set  aside  the  default  entered  in  this 
Barker  casc,  and  the  service  of  the  subpcena,  on  the  ground  that  the 
Bank  of    subocEna  was  served  out  of  the  state.     It   appeared  that  the 

AVindsor.  ^  ,    r        ^  •         i  r  ir 

subpoena  was  served  on  the  defendants  in  the  state  ot    Ver- 
mont. 

Februarys.       D.  GooDwiN  in  support  of  the  motiou. 

The  service  of  the  subpoena  was  irregular  and  void;  the  ser- 
vice and  all  subsequent  proceedings  must,  therefore,  be  set  aside. 
R.  S.,  366,  367,  371;  Dunn  vs.  Dunn,  4,  Paige  R.,  425. 

T.  RoMEVN  opposed  the  motion. 

Cited  1  Hoff,  Pr.,  110  to  112,  n. 

The  Chancellor.  This  motion  must  be  granted  on  the 
authority  of  the  case  of  Dunn  vs.  Dunn,  4  Paige,  425.  The 
case  is  there  fully  considered,  and  Chancellor  Walworth,  after 
a  full  examination  of  all  the  authorities  upon  the  subject,  comes 
to  the  conclusion,  that  the  service  of  a  subpoena  out  of  the  state, 
is  irregular. 

Motion  granted. 


CASES  IN  CHANCERY.  255 


Jerome  vs.  Seymour. 

Where  theassignfe  of  a  mortgage  files  a  bill  to  foreclose,  setting  forth  the  mortgage  and  assign-         jg4, 
ment,  he  may,  upon  the  notice  required  by  the  6'2d  rule  to  the  opposite  party,  have  an  order  First  Circuit, 
to  prove  the  assignment  as  an  exhibit  at  the  hearing  under  the  provisions  of  rule  56.  ^^^'v^^^ 

Jerome 

This  was  a  bill  of  foreclosure  filed  by  the  assignee  of  the    seymour. 
mortgage. 

The  mortgage  and  assignment  to  the  complainant,  was  set  Februarys, 
forth  in  the  l  ill. 

Complainant  gave  four  days'  notice  under  the  provisions  of 
rule  G2,  of  a  motion  for  an  order  to  prove  the  assignment  of 
the  mortgage  as  an  exhibit  at  the  hearing  under  the  provisions 
of  rule  56. 

E.  C.  Seaman,  for  complainant. 

W.   Hale,  for  defendant. 

The  court  granted  the  order.   (1.) 

(I,)  (See  Contequa  vs.  Fanning,  2  John.  Ch.  R.,  481,  where  a  like  order  was  granted. 


256  CASES  IN  CHANCERY. 


cult. 


Hinging 
vs. 


HiGGTNs  and  others  vs.  Carpenter  and  another. 

1941  Where  the  defendants  moved  for  the  confirniation  of  a  decree  to  dismiss  the  suit,  on  the  ground 

Third  Cir-  {jj^^  j],g  complaincinls  had  failed  to  comply  with  an  order  emered  under  rule  20,  for  a  copy  of 
the  bill,  and  it  appeared  that  subsequent  to  the  defaul',  the  di-fcn;lants  had  filed  their  answer 
and  moved  to  dissolve  the  injunction — /(  was  held  that  the  defendants  had  waived  their  right  to 
dismiss  the  suit  for  want  of  service  of  a  copy  of  the  lill;  and  it  was  further  held,  that  this 
Carpenter.  oeing  an  application  for  a  final  decree  in  the  cause,  should  be  made  at  a  general,  and  not  at  a 
special  term. 

This  was  an  application  at  a  special  term,  foi*  confirmation 
of  a  decree  to  dismiss  the  bill. 

H.  N.  Walker,  for  defendants,  at  a  special  term,  on  affi- 
davit of  the  entry  of  an  order  for  service  of  copy  of  the  bill 
in  15  days,  as  required  by  rule  20  of  this  court,  and  of  the 
due  service  of  notice  of  the  oi-der,  and  also,  stating  that  no 
copy  of  the  bill  as  required  by  the  rule  had  been  served, 
and  that  defendants  have  entered  a  decree  in  vacation  with 
the  register  of  the  court,  dismissing  the  bill  with  costs,  now 
moved  for  the  confirmation  of  the  decree  dismissing  the  bill. 

B.  F.  CoopKR,  for  complainants,  produced  an  affidavit,  from 
which  it  appeared  that  the  defendants,  after  the  entry  of  the 
decree  dismissing  the  bill,  had  moved  the  court  for  a  dissolu- 
tion of  the  injunction  on  the  bill,  and  answer  served  upon  him 
since  the  entry  of  the  decree  dismissing  the  bill. 

He  insisted  that  by  the  practice  of  this  court,  under  rule  17, 
a  defendant  may  answer  either  with  or  without  the  service  of  a 
copy  of  the  bill.  If  he  chooses  to  save  the  expense  of  a  copy 
of  the  bill,  by  resorting  to  the  pleadings  on  file  in  the  register's 
office,  he  can  do  so.  If  he  claims , a  copy  of  the  bill,  he  may 
compel  the  service  of  a  copy  by  virtue  of  rule  20.  That  rule 
is  one  for  the  defendants  accommodation  in  answering;  and  if 
subsequently  to  the  entry  of  an  order  for  service  of  a  copy, 
he  accepts  a  service  for  any  purpose,  the  object  of  the  rule  is 
annulled,  and  the  order  is  waived. 

If  the  order,  requiring  service  of  a  copy  of  the  rule,  were 


CASES  IN  CHANCERY.  257 


If  the  order,  requirinfj  service  of  a  cony  of  the  bill,  were  Third  cir- 
not  so  waived,  the  motion  to  dissolve  the  injunctions  on  the  bill  v,^-v-%,. 
and  answer  served  after  the  decree  to  dismiss,  was  a  waiver     "'il'"^ 
of  that  decree  in  accordance  with  the  rule  which  waives  an  ir-     ^^p'^"*''- 
regularity,  by  taking  proceedings  in  the  cause  subse(]uently  to 
it,   without  taking  advantage  of  this   irregularity.     4  Paige, 
288,  439;  2  John.  C/i.,  242;  5  lb.,  191. 

That  if  the  decree  to  dismiss  was  not  waived  by  defendant, 
this  motion  should  be  denied  with  costs,  for  the  reason  that  by 
the  terms  of  the  rule,  the  decree  to  dismiss  is  a  final  and  not 
an  interlocutory  decree.  It  is  analogous,  in  some  respects,  to 
a  rule  for  a  discontinuance  at  term,  which  requires  ao  confir- 
mation. 

The  Chancellor.  The  defendants  having,  subsequent  to 
the  default,  filed  their  ansvver,  and  based  thereon  a  motion 
to  dissolve  the  injunction,  have  waived  the  right  to  dismiss  for 
wanl  of  service  of  a  copy  of  the  bill. 

Further.  This  being  an  application  for  a  final  decree  in 
the  cause,  should  be  made  at  a  general  term.  Rose  vs.  Wood- 
ruff, 4  John.   Ch.  R.,  547. 


Vol.  I.  33 


258 


CASES  IN  CHANCERY. 


Kellogg  vs.  Barnes. 


1840.        Where  the  complainant  had  due  notice  of  a  motion  to  dissolve  an  injunction,  and  he  neglected 
Second  Cir-      {„  appear  and  oppose  the  motion,  the  defendant  was  permitted  to  take  his  order  dissolving  the 
injunction  with  costs> 


Kellogg 

vs. 
Barnes. 


Motion  to  dissolve  an  injunction. 

B.  F.  Cooper,  for  defendant. 

Moved,  in  tendering  admission  of  due  service  of  a  notice 
of  the  motion  that  the  injunction  issued  in  this  cause,  be  dis- 
solved, for  want  of  equity  in  the  bill.  No  counsel  for  the  com- 
plainant appearing  to  oppose,  Cooper  contended  that  the  prac- 
tice in  such  cases  was,  or  should  be,  that  the  motion,  be 
granted  with  costs,  without  the  papers  being  read  or  any 
further  account  given  to  the  court,  than  simply  to  state  the  ap- 
plication to  be  made,  and  show,  by  admission  or  affidavit,  that 
notice  had  been  brought  home  to  the  opposite  party.  1  Smithes 
Pr.  66;  Rule  62,  69;  2  Caines'  R.,  379,  80;  3  Caines'  R.,  82; 
1  Hnff.  Pr.,  551;   1  Dunlaps  Pr.,  327,  350-2. 

H.  N.  Walker,  as  amicus  curiae,  suggested  that  the  former 
practice  of  the  court  had  been  to  look  into  the  papers  as  if  they 
had  been  submitted  on  argument. 

The  Chancellor.  Where  a  party  after  service  of  notice 
of  retainer,  neglected  to  appear  and  oppose,  the  court  say,  by 
not  appearing,  the  party  consents  to  the  application.  Ekhart 
vs.  Dcarman,  2  Caines^  Rrp.,  379.  Such,  also,  appears  to  be 
tho  practice  in  England. 

The  defendant  may  take  the  order  that  the  injunction  be  dis- 
solved with  costs,  stating  in  the  order,  however,  that  no  one 
appeared  on  the  motion  to  opposCr 


CASES  IN  CHANCERY. 


259 


Hannah  Walton  and  others  vs.  Joseph  W.  Torrey 

and  others. 

The  provision  in  a  will  that  the  estate  shall  remain  undivided  until  the  yo<ingesl  of  the  dcvi-         IMl. 
sees  becomes  of  the  age  of  twenty-one  years,  is  not  such  a  limitation  vj3  will  inhibit  any  one     "^'''    "^*^"'  ' 
of  llie  devisees  from  conveying  his  interest  in  the  premises.  V^^^V^.^ 

Provisions  in  restraint  of  alienation  are  not  to  be  favored.  ^ 

Where  a  sale  of  real  estate  was  ordered  by  a  judge  of  probate  and  it  appeared  that  he  himself      Torrey. 

became  interested  in  the  purchase,  tlie  sale  was  set  aside  and  a  resale  was  ordered  to  be  made 

under  the  direction  of  the  court. 

« 

The  bill  of  complaint  was  filed  in  September,  A.  D.  183G, 
and  states  that  in  May,  A.  D.  1825,  one  Jesse  Hicks,  of  Wayne 
county,  Michigan,  was  seized  and  possessed  of  a  certain  farm 
of  271  33-100  acres,  on  the  River  Rouge,  in  said  county,  cajl- 
ed  the  Hicks  farm;  and  that  said  Jesse  duly  made  and  pub- 
lished his  last  will,  dated  May  7,  1825;  the  provisions  of  the 
will  are  set  forth  as  follows: 

1st.  My  will  is,  that  all  my  just  debts  and  funeral  expenses 
be  paid  out  of  my  personal  property. 

2d.  That  as  regards  my  real  estate,  my  will  is,  that  it  re- 
main undivided  in  the  use,  occupation  and  possession  of  all  my 
children  now  living,  until  the  youngest  attains  the  age  of  twen- 
ty-one years,  and  that  until  that  time,  the  rents  and  profits  be 
equally  npplied  in  and  towards  their  support  and  education;  that 
when  and  so  soon  as  the  youngest  child  shall  have  attained  the 
age  of  twenty-one  years,  my  will  is  that  an  estimation  of  all 
the  value  of  my  real  estate  be  made  by  Orville  Cook,  of  De- 
troit, and  Henry  I.  Hunt,  of  the  same  place,  or  if  they  should 
not  be  living  at  that  time,  then  by  such  persons  as  they  may 
have  nominated,  and  after  such  estimation  and  valuation,  that 
the  said  real  estate  be  divided  equally,  and  share  and  share 
alike  among  my  children  now  alive,  or  the  survivors  of  them, 
and  the  heirs  of  any  who  may  die  previous  to  such  division. 

3d.  Such  part  of  my  stock  and  personal  property  as  may  re- 
main after  payment  of  my  debts,  I  will  to  bo  distributed,  one- 
third  to  my  wife,  and  the  remainder  to  remain  for  the  use  of 
the  farm. 


^60  CASES  IN  CHANCERY. 

Firstcircuit.      4th.  My  will  is,  notwithstanding,  that  nny  wife  be  entitled 
^'I^r^^  to  the  use  of  the  homesiead  durino;  her  Vde,  and  also  the  pro- 

WaUon  =■  '  ^ 

To7r'ey-    ^^^  °^  one-third  part  of  the  farm  on  which  I  live. 

5th.  I  hereby  revoke  and  annul  all  former  wills,  testaments, 
codicils  or  parts  of  the  same  heretofore  made  and  executed. 

In  witness  whereof,  &c., 

The  bill  further  states,  that  in  May,  1825,  said  Jesse  died, 
leaving  the  complainants,  Hannah  Walton,  now  Hannah  Hicks 
his  widow,  and  Jesse  A.,  Betsy,  Hannah,  Adaline  and  Theodore 
E.  Hicks;  also  Caroline  Hick.-,  (since  deceased,)  without  issue, 
and  Andrew  Hicks,  (supposed  deceased,)  his  children  surviving 
him;  that  the  farm  has  not  been  sold  to  pay  said  Jesse's  debts; 
that  said  widow  and  children,  except  Andrew  and  Caroline  are 
sole  surviving  devisees  of  said  Jesse's  will;  that  said  Theodore 
is  youngest,  and  will  be  twenty-one  years  old  in  the  year  1841; 
thatLarned  and  Torrey  were,  in  1829,  and  previously,  lawyers 
practising  in  Detroit;  that  after  said  Jesse  died,  his  said  wife 
and  children  believing  said  L.  and  T.  had  been  the  counsel  of 
said  Jesse,  applied  to  them  for  advice  as  to  the  rights  and  du- 
ties of  said  widow  and  children  under  said  will;  that  said  L. 
and  T.,  by  a  show  of  kindness  and  regard,  gained  the  entire 
confidence  of  the  said  widow  and  children  in  their  legal  ability 
and  integrity,  and  became  their  counsel,  and  had  their  papers 
relatmg  to  said  will,  and  knew  all  the  rights  and  duties  of  said 
widow  and  children  under  said  will,  and  knew  that  said  Theo- 
dore would  not  be  of  age  till  A.  D.  1841;  that  L.  and  T,  in 
1829,  told  said  widow  and  children  that  they  might  sell  or  en- 
cumber said  Hicks'  farm,  notwithstanding  said  will,  which  they 
said  was  invalid,  and  that  said  children  were  heirs  at  law,  and 
that  said  wife  and  children,  up  to  the  year  1832-3,  when  Tor- 
rey left  the  country,  believed  the  above  statements  of  said  L. 
and  T. ;  and  that  said  L.  and  T.  induced  said  widow  toconvey 

4 

her  interest  in  said  farm,  by  telling  her  that  such  conveyance 
would  not  expose  her  to  be  turned  off  said  farm,  and  that  she 
and  her  children  should  have  possession  thereof;  and  that  said 
widow  made  such  conveyance,  being  ignorant  of  the  effect 
thereof,  March  10th,  1832.     That  at  same  time,  said  Jesse  A. 


CASES  IN  CHANCERY.  261 

Hicks  conveyed  to  said  L.  and  T.  his  interest  in  said  farm  as  Firstcircuit. 
heir  at  law,  of  said  Jesse,  stating  he  would  not,  thereby,  lose     ^vaiion 
possession  thereof,  till  1841;  and  that  April  6,  1832,  by  sii?iilar     xo/rey. 
statements,   L.  and  T.  procured  a  deed  from  complainants, 
Blanchard  and  wife,  while  the  wife  was  a  minor,  of  one-sixth 
part  of  said  farm;  and  that  said  L.  and  T.  by  the  aforesaid  re- 
presentations induced  Downer  and  wife  (a  minor)  to  convey 
one-seventh  of  said  farm  to  one  Frazer,  and  then  seized  the 
first  opportunity  to  get  a  deed  from  Frazer  to  themselves. 

The  bill  further  states,  that  in  1832,  said  Torrey,  as  judge 
of  probate  of  Wayne  county,  appointed  one  Johnson  guardi- 
an of  said  Theodore  and  Adaline,  and  sooji  after  gave  him  li- 
cense, on  application,  to  sell  the  interests  of  said  Theodore  and 
Adaline  in  snid  farm;  that  said  Johnson  then  sold  and  convey- 
ed the  same  to  one  Sawyer,  and  said  Sawyer  to  said  Larned 
and  Torrey;  that  said  sale  was  unnecessary  and  without  con- 
sideration, either  from  Sawyer  or  Larned  and  Torrey;  that 
Larned  and  Torrey  procured  the  appointment  of  said  Johnson, 
and  his  deed  to  said  Sawyer,  solely  to  get  title  to  the  interests 
of  said  minors.  The  bill  adds,  that  Larned  died  in  1834,  and 
that  his  heirs  since  pretend  that  said  Larned  and  Torrey  leased 
said  farm  to  one  Isaiah  Walton,  who  had  married  said  widow, 
and  that  she  held  said  farm  under  him;  and  charges,  that  if  so, 
said  lease  was  without  the  consent  of  any  of  the  complainants, 
and  in  order  to  undermine  them;  and  that  said  widow  never 
pretended  to  hold  under  said  Isaiah,  but  only  under  said  will; 
that  said  Torrey  and  heirs  of  said  Larned  have  turned  said 
complainants  off  from  the  farm,  and  that  they  have  been  there- 
to restored;  that  they  have  since  commenced  and  discontinued 
two  suits,  and  afterwards  commenced  a  third  suit  to  recover 
possession  of  said  farm. 

The  bill  prays  for  a  re-conveyance  from  Larned's  heirs  and 
Torrey,  of  Iheir  interest  in  said  farm,  and  that  the  deeds  to  Lar- 
ned and  Torrey  and  Sawyer  be  cancelled,  and  for  an  injunc- 
tion to  stay  defendants  from  proceeding  under  the  forcible  en- 
try and  detainer  act,  and  from  selling  or  effecting  possession. 
The  defendant,  Torrey,  puts  in  his  answer,  which  is  sub- 


262  CASES  IN  CHANCERY. 

Firstcircuit.  gtantially  the  same  with  the  answer  of  Sawyer  and  that  of  the 
^"^^2^  infants;  which  last  defendants  set  forth  some  facts  in  addition 
Torr^y.     to  thosc  Stated  in  the  answers  of  Torrey  and  Sawyer. 

All  said  answers  admit  the  seizein  of  Hicks  in  said  farm,  and 
that  he  died  and  left  such  will  and  such  children  as  is  stated 
in  the  bill,  but  express  ignorance  as  to  dates;  submit  whether 
said  Jesse's  children  were  not  seized  in  fee  of  said  land,  as 
heirs  at  law,  and  were  competent  to  convey  it;  and  whether  the 
estates  of  said  infant  complainants  were  not  subject  to  aliena- 
tion, like  those  of  all  infants,  by  order  of  probate  court;  ad- 
mits partnership  of  Earned  and  Torrey,  from  October,  1825, 
to  1833,  but  say  they  had  nothing  to  do  with  the  estate  of  said 
Jesse,  and  never  made  any  representations  to  complainants,  as 
alledged  in  the  bill;  that  the  said  Jesse  A.  Hicks  first  offered 
his  and  his  brother  Andrew's  share  in  said  farm  to  Earned  and 
Torrey  for  $200,  to  pay  for  dcf'-nce  of  said  Andrew  against  an 
indictment;  that  afterwards  said  Jesse  A.  and  his  mother,  urged 
Earned  and  Torrey  to  buy  h^'eT'share,  and  agreed  to  give  imme- 
diate possession,  or  to  rent  the  farm  at  .$50  per  year,  and  that 
thev  afterwards  bought  the  shares  of  Blanchard  and  Downer. 
All  these  purchases  they  made  reluctantly  and  at  the  urgent  so- 
licitation of  Jesse  A.  and  his  mother,  and  paic?  $100  per  share; 
defendants  deny  that  they  told  complainants  their  selling  would 
not  make  them  liable  to  be  turned  off  of  said  farm  or  lose  pos- 
session till  the  youngest  was  of  age;  defendants  admit  plain- 
tiffs' statements  as  to  the  sale  of  tlie  infants'  sha,res,  by  order 
of  Torrey,  as  judge  of  probate,  but  deny  all  fraud  or  irregu- 
larity or  illegality  in  the  same,  and  say  full  consideration  was 
paid  for  the  same,  and  deny  any  connection  of  Earned  and  Tor- 
rey with  the  proceedings  relating  to  said  sale,  and  deny  all  fraud 
and  all  intent   to  commit  fraud  on  the  part  of  Sawyer  in  the 
sale,  and  deny  all  fraud  generally,  and  all  intent  to  oppress  or 
harrass  said  plaintiffs  in   proceedings   to  obtain  possession  of 
said  farm,  in  1836. 

H.   T.  Backus,  for  complainants. 
.T.  M.  Howard,  for  defendants. 


CASES  IN  CHANCERY.  263 

The  Chancellor.     Whether  the  children  of  Jesse  Hicks,  First circuu. 
deceased,  the  complainants  in  this  case,  take  as  heirs  or  devi-  ^^^"^^ 

'  _  Walton 

sees,  they  take  an  estate  in  presenli,  and  whatever  Interest  they  ^  "*• 
have,  it  is  competent  for  them  to  convey.  The  provision  in 
the  will,  that  it  should  remain  undivided,  is  not  such  a  li- 
mitation as  would  inhibit  any  one  from  conveying  whatever 
interest  he  possessed.  Provisions  in  restraint  of  alienation,  are 
not  to  be  favored.  Whether  any  purchaser  could  enforce  a 
partition  before  the  youngest  child  became  of  age,  so  lon^  as 
either  of  the  heirs,  or  devisees  retained  his  interest,  is  a  ques- 
tion that  does  not  arise  in  this  case.  The  interests  being  then 
alienable,  it  was  within  the  jurisdiction  of  the  judge  of  probate 
to  decree  a  sale  of  the  right,  title  and  interest  of  the  two  mi- 
nors, Adaline  and  Theodore  E.  Hicks,  upon  a  case  being  made, 
upon  the  happening  of  which,  the  statute  authorized  the  sale 
of  the  lands  of  minors,  for  their  support  and  maintenance. 

The  proceedings  appear  to  have  been  regular. 

The  decree  of  the  judge  of  probate  stands  of  force,  and  not 
appealed  from. 

It  is  too  late,  therefore,  to  interfere  with  the  decree.  As  to 
the  sale  and  purchase  in  fact,  by  Earned  and  Torrey,  Torrey 
having  been  the  judge  of  probate  who  granted  the  order,  I  have 
had  some  doubt.  But  the  case  of  Devaux  vs.  Fanning,  2  Johns. 
Ch.  R.,  268,  goes  the  full  length  of  declaring  such  ,a  sale  void. 

It  is  placed  upon  the  ground  of  disability  to  purchase,  ari- 
sing from  the  office  which  the  purchaser  held.  And  the  case 
quoted  by  Chancellor  Kent  on  that  occasion,  extends  the  disa- 
bility to  guardians,  judicial  officers,  and  all  other  persons  who 
in  any  respect,  as  agents,  had  a  concern  in  the  disposition  and 
sale  of  the  property  of  others,  whether  the  sale  was  pubUc  or 
private,  judicial  or  otherwise. 

What  is  the  case  here?  The  defendant,  Torrey,  acting  as 
judge  of  probate,  having  previously  acquired  certain  portions 
of  this  property,  makes  the  order  for  the  sale  of  the  shares,  of 
these  minor  heirs.  He  becomes  a  joint  purchaser  through 
Sawyer. 

If  there  is  any  wisdom  or  justice  in  the  rule,  it  seems  to  me 


264  CASES  IN  CHANCERY- 

Firstcircuit.  that  this  presents  a  very  proper  case  for  its  application.  With- 
^""^^"^^^  out  attributing  any  intention  to  commit  a  .  fraud,  and  there  is 
Torre-  nothing  from  which  to  infer  it  in  this  case,  it  seems  that  there 
can  be  no  office  or  trust  which  would  present  stronger  tempta- 
tions for  abuse,  than  that  of  the  one  occupied  by  Torrey,  if 
the  real  estates  of  minors  could  be  directed  to  be  sold  and  pur- 
chased by  the  same  individual.  As  to  this  portion  of  the  case 
then.  I  am  disposed  to  follow  the  course  pursued  in  the  case  of 
Devaux  vs.  Fanning.  As  to  the  claim  of  Mrs.  Blanchard  and 
Mrs.  Downer,  the  daughters  of  the  deceased,  they  are  alleged 
to  have  been  minors  at  the  time  of  the  execution  of  the  deed. 
As  the  result,  in  this  respect,  must  depend  upon  the  establish- 
ment of  the  fact  of  minority,  an  issue  must  be  directed  to  try 
that  fact.  The  shares  of  the  two  minor  children,  Adaline  and 
Theodore  E.  Hicks,  must  be  put  up  for  sale,  under  the  direc- 
tion of  the  master,  at  the  same  price  at  which  they  were  sold 
to  Earned  and  Torrey,  as  a  minimum,  if  no  more  is  offered,  the 
former  sale  to  stand  confirmed;  if  more  is  offered,  the  master 
to  proceed  to  sell  the  same;  and  upon  being  paid  the  con- 
sideration, to  execute  a  deed  thereof  to  the  purchaser,  and  to 
bring  the  money  arising  from  such  sale,  into  court  to  abide  the 
further  order  of  the  court  in  the  premises.  As  to  the  sales 
made  by  the  other  complainants,  there  is  no  ground  for  the 
interference  of  this  court  in  the  premises. 

The  injunction  heretofore  granted  in  this  cause,  to  be  dis- 
solved. 


CASES  IN  CHANCERY.  265 


Grahajvi  and  another  vs.  Elmore  and  another. 

Where  a  solicitor  has  appeared  in  a  cause,  and  a  demurrer  is  fileil,  signed  by  solicitors  who         ia4l. 
have  not  appeared,  the  demurrer  may  be  treated  as  willjoul  si;;n;.turc  and  as  a  nullity. 

But  where  the  demurrer  in  such  ciise,  was  trcateJ  as  a  nulMy  by  the  coniplainanls,  and  a  de-      (j^^imnj 
fault  was  entered  for  want  of  an  answer,  and  it  appeared  that  the  signature  of  the  wrong  vs. 

solicitors  was  put  to  the  demurrer  by  mistake,  and  that  injustice  would  be  done  if  the  defen- 
dant should  not  lie  permitted  to  answer,  the  default  was  set  aside  oo  terms. 

Where  there  are  joint  defendants,  upon  a  pro  confesso  obtained  against  one,  the  compUi'n.-nt 
cannot,  before  the  cause  is  at  issoe  or  in  readiness  for  hearing  against  the  other,  enter  a  final 
decree  and  issue  execution  llicveon  against  the  party  against  whom  the  bill  has  been  takeu 
as  confessed,  and  leave  the  cause  to  proceed  against  the  other  defendant. 

It  is  the  uniform  rule,  that  a  final  decree,  or  an  interlocutory  degree,  which,  in  a  great  mea- 
sure, decides  the  merits  of  the  cause,  cannot  be  pronounced  until  all  the  p  iriies  to  the  bill, 
and  all  the  parties  in  interest,  are  before  the  court. 

This  court  will  not  adjudge  upon  a  part  of  the  case  ;  it  will  nnt  make  a  final  decree  until  the 
case  is  properly  presented,  in  such  form  as  will  enable  the  court  to  make  u  linul  disposition 
of  the  case,  and  do  justice  to  all  the  parties. 

Where  a  cause  is  in  readiness  for  hearing  against  one  defendant,  and  there  is  another  defen- 
dant as  to  whom  the  cause  is  not  in  readiness,  the  defendant  who  has  appeared  and  an- 
swered, cannot  notice  the  cause  lor  hearing',  but  must  move  to  dismiss  the  bill  for  want  of 
prosecution. 

A  decree  hy  default  may  be  set  aside,  on  motion,  and  the  court  decides  the  question  on  motion, 
where  the  facts  appear,  and  there  is  nothing  to  dispute  about  but  the  law  of  the  court. 

The  bill  in  this  case,  charged  that  the  dcfendent,  William  ^^^rchio. 
H.  Elmore,  had  obtained  goods  of  the  complainants,  who  arc 
merchants  in  New  York,  to  the  amount  of  about  $600,  (but 
did  not  otherwise  describe  the  goods,)  on  the  credit  of  one 
Frederick  W.  H.  Elmore,  by  representing  to  the  complainants 
that  he  was  the  agent  of  F.  W,  H.  Elmore  to  purchase  goods  for 
him  on  a  credit;  that  this  representation  as  to  the  agency,  was 
entirely  false,  and  that  William  H.  Elmore  purchased  these 
goods,  on  this  fradulent  representation,  for  his  own  benefit, 
and  that  he  executed  to  the  complainants  two  notes  for  about 
'$300,  each,  subscribed  with  the  name  of  F.  W.  H.  Elmore,  in 
his  assumed  capacity  as  agent;  that  after  these  goods  were  ob- 
tained, they  were  forwarded  to  Detroit,  where  William  H. 
Elmore,  for  some  time,  carried  on  mercantile  business  un- 
der the  name  of  F.  W.  H.  Elmore;  that  subsequently,  an 
assignment  of  this  storeof  gODJs  was   made  by  an  instrument 

Vor.  T.       ,  .'H 


266  CASES  IN  CHANCERY. 

Firstcircuit.  jn  vvritinfT,  simied  F.  W    H,  Elmore,  bv  W.  H.  Elmore,  his 
^  ."^^  attorney,  to  Hicks,  and  \u  which  wus  also,  a  covenant  that  it 

Graham  j  ■>  .  j 

Elmore,  passcd  all  right  and  title  of  W.  H.  Elmore,  to  the  goods.  The 
bill  charged  that  when  this  assignment  was  made,  Hicks  had 
knowledge  of  the  fraud  of  Elmore  in  obtaining  complainants' 
goods;  and  contained  also,  a  charge  in  relation  to  the  assign- 
ment of  the  goods  in  the  store,  in  the  following  terms: 
"among  which  said  merchandize,  your  complainants'  charge 
was  included;  the  merchandize,  so  as  aforesaid,  purchased  of 
your  complainants,  in  the  portion  of  them  which  remained  un- 
disposed of  by  the  said  William  H.  Elmore,  but  which  particu- 
lar part  or  portion  of  the  same,  complainants  were  ignorant. 

The  bill  further  charged,  that  complainants  parted  with  their 
goods  in  the  confidence  in  the  truth  of  this  representation; 
that  thev  did  not  observe  the  fraud  until  after  the  notes  were 
due  and  until  after  they  had  demanded  payment  of  them  at 
the  store  where  William  H.  Elmore  had  traded;  that  after  dis- 
covering the  fraud,  they  demanded  a  return  of  the  goods  of 
Hicks  and  Elmore,  or  the  unsold  portion  of  them,  which  ihey 
refused  to  return;  that  complainant  had  commenced  no  legal 
proceedings  against  defendants,  except  the  filing  of  this  bill. 

The  first  prayer  of  the  bill  was,  that  defendants  might  an- 
swer, the  defendant  Hicks,  under  oath,  but  the  defendant  El- 
more, without  oath,  from  an  inspection  of  the  inventory,  in- 
voices and  books,U'hat  goods  were  obtained  from  complainant 
and  what  portion  of  them  were  assigned  to  defendant  Hicks; 
what  portion  of  them  were  sold  by  William  H.  Elmore,  be- 
fore the  assignment,  and  what  portion  by  Hicks,  since  the  as- 
signment, and  for  what;  that  a  receiver,  with  the  usual  powers, 
might  be  appointed,  of  complainants'  goods  in  the  hands  of  de- 
fendants, or  either  of  them,  and  that  the  unsold  portion  of 
them  be  delivered  to  the  complainants;  that  Elmore  be  liable 
for  the  interest  of  the  whole  goods,  to  the  time  of  the  assign- 
ment to  Hicks,  and  for  the  amount  of  goods  sold  by  him;  that 
both  defendants,  or  either  of  them,  account  for  the  goods  sold 
by  Hicks,  since  the  assignment,  and  the  interest  upon  the  un- 
sold portion  of  them  since  the  assignment,  and  be  personally 
liable  therefor;  that  defendants  be  enjoined  from  assigning  or 


CASES  IN  CHANCERY.  267 

disposing  of  the  goods  or  their  proceeds,  and  for  such  other  Firstcircmt. 
and  further  relief  herein,  as  the  court  may  order.  Graiu.m 

Or  secondly,  that  defendants  nnight  answer  and  be  enjoined  Eimore. 
as  aforesaid;  that  they  be  decreed  to  return  the  unsold  por- 
tion of  the  goods  to  complainants,  and  to  account  and  be  per- 
sonally liable,  as  aforesaid,  and  for  complainants'  costs.  The 
complainants  prayed  for  general  relief.  Their  prayers  were 
all  in  the  disjunctive. 

The  bill  was  taken,  pro  confesso,  and  after  the  cause  had  novtso. 
been  set  down  on  the  orders  pro  confesso,  for  a  hearing  and 
notice  for  a  final  decree,  H.  N.  Walker  for  defendant,  Hicks, 
applied  on  affidavit  to  the  chancellor  for  leave  to  withdraw  his 
demurrer,  to  have  the  order,  pro  confesso,  against  him  opened, 
and  leave  to  answei-.  The  affidavit  stated  that  previous  to  the 
entry  of  the  default,  H.  N.  Walker  gave  notice  of  retainer  for 
Hicks,  and  that  a  demurrer  had  been  filed  on  the  part  of  Hicks, 
and  that  by  mistake  the  nan^e  of  the  firm  of  Bates,  Walker  & 
Douglass  was  signed  to  the  demurrer;  that  complainants  coun- 
sel had  treated  the  demurer  as  a  nullity  on  that  account  and 
had  entered  the  default.  The  chancellor  granted  an  order  that 
the  complainants  show  cause  before  him  at  his  chambers,  why 
the  demurrer  should  not  be  withdrawn;  the  order,  pro  confes- 
so, opened  and  defendant,  Hicks,  have  leave  to  answer;  and 
that  defendants  solicitor  serve  on  the  complainants  solicitor, 
the  affidavit  of  merits;  the  answer  prepared  to  be  filed  and  a 
copy  of  the  order  to  show  cause  at  least  four  days  before  the 
time  of  hearing. 


•e* 


B.  F.  Cooper,  for  complainants.  Read  an  affidavit,  from 
which  it  appeared  that  on  entering  the  order,  pro  confesso,  the 
complainants  had  served  a  notice  upon  the  defendants  solici- 
tor, of  the  entry  of  such  order,  and  offered  to  open  the  same 
without  costs,  provided  a  full  and  sufficient  answer  were  ser- 
ved before  the  first  day  of  the  term,  for  which  the  cause  had 
been  set  down  for  a  hearing  on  the  orders,  pro  confesso;  that 
no  answer  had  been  filed  and  that  two  special  terms  had  elaps- 
ed since  the  entry  of  the  orders,  pro  confesso;  and  that  de- 


268  €ASES  IN  CHANCERY. 

FirstCircuit.  fendants  had  taken  no  previous  steps  in  the  case,  and  insisted 
„   ,  1.   That  the  application  of  the  defendant  was  now  too  late. 

Graham  r  i^ 

Elmore.     ^  Joku.  C/i.,  242;  4  PoJge,  288,  439. 

2.  That  the  affidavit  of  merits  was  not  sufficiently  full 
and  gave  no  sufficient  excuse  for  the  delay;  that  the  answer 
was  exceptionable  for  insufficienc}';  he  examined  the  w^hole 
case  upon  the  bill  and  answer  served,  and  insisted  on  the  au- 
thority of  the  decision  in  6  Paige,  371;  5  lb.,  164;  1  Hnffrnan, 
551,  7;  ihat  the  order,  pro  confesso,  should  not  be  opened,  as 
from  the  answer  presented  it  appeared  that  the  defendant,  al- 
though attempting  to  interpose,  the  defence  of  a  bona  tide  pur- 
chaser, without  notice,  had  nevertheless  admitted  and  shown 
such  a  knowledge  of  facts  and  circumstances  relating  to  the 
fraud  as  charged,  to  put  him  on  inquiry  and  to  charge  him  with 
constructive  notice  of  the  fraud;  that  no  injustice,  therefore, 
would  be  done  to  the  defendant  by  refusing  this  motion,  but 
injustice  would  be  done  to  the  complainant  if  it  were  granted. 

3.  That  the  opening  of  the  order  is  a  matter  resting  in  the 
sound  discretion  of  the  court,  who  are  to  see  that  no  injustice 
is  done.  If  it  be  now  opened,  the  defendants  should  be  requi- 
red to  pay  all  costs  of  the  suit  subsequent  to  the  proceedings 
to  take  the  order,  pro  confesso,  and  the  costs  of  the  motion. 
They  should  put  in  a  sufficient  answer  and  submit  to  such  equi- 
table terms  as  the  court  may  impose,  to  expedite  the  cause,  and 
to  ascertain  the  facts  of  the  case.  In  this  case,  the  defendants 
should,  as  equitable  terms  he  required  to  stipulate,  that  the 
complainants  under  the  issue,  may  if  they  shall  so  elect,  exa- 
mine the  defendant,  Elmore,  as  a  witness,  without  a  waiver  of 
any  liability  to  them,  and  if  complainants  shall  so  elect,  they 
mav  themselves  also  be  examined  as  witnesses  in  the  cause, 
and  that  a  commission  may  be  taken  out  to  obtain  their  testimo- 
ny. The  tendency  of  chancery  practice  in  modern  times,  is  to 
let  in  evidence  from  all  quarters  to  satisfy  the  conscience  of 
the  court. 

On  a  refei'ence  to  account,  and  in  other  causes  referred  to  a 
master,  it  is  every  day's  practice  to  examine  both  the  com- 
plainants and  defendants.     In  England  when  a  feigned  issue 


vs. 
Eluioie. 


CASES  IN  CHANCERY.  269 

is  awarded,  (a  proceeding  which  rests  in  the  sound  discretion  Firsicircuu. 
of  the  court.)  it  orders  the  parties   to  be  examined  before  the     ^   ^ 

''  '  Graham 

jury,  and  it  is  assigned  as  the  reason,  that  the  parties  are  not 
witnesses  for  themselves,  but  for  the  court,  which  is  presumed 
to  be  able  to  judge  both  of  the  «redibility  and  the  competency 
of  the  witnesses.  1  John.  Ch.,  631;  3  Paige,  407;  1  lb.,  4.30. 
As  to  the  examination  of  parties  4  Mad.  R.,  236;  1  Swan's, 
39;   Greskys  Eq.  E.,  241-4;  393-5. 

H.  N.  Walker,  for  defendant,  cited  3  Chit.  Gen.  Pr.,  525; 

7  Pa/o-e,  370;  6  lb.,  371;  insisted  that  the  demurer  was  regular 
and  a  valid  proceeding  in  the  cause  until  set  aside.  That  if 
the  demurrer  were  irregular  he  should  be  allowed  to  answer 
on  terms. 

The  Chancellor.  The  demurrer  having  been  signed  by 
solicitors,  whose  appearance  had  not  been  entered  in  this  case, 
might,  where  another  solicitor  had  appeared  for  this  defend- 
ant, be  treated  as  without  signature,  and  as  a  nullity.  3  Chit- 
ty's  Gen.  Prac,  524. 

But  the  demurrer  having  been  filed  in  this  form  by  mistake, 
the  court  w'ould  relieve  the  party  from  the  consequence,  if  sat- 
isfied that  injustice  would  be  done,  if  the  party  should  not  be 
permitted  to  answer. 

The  answer  discloses,  first,  that,  as  defendant,  Hicks,  be- 
lieves, W.  H.  Elmore  was  authorized  to  purchase  the  goods  in 
the  name  of  F.  W.  H.  Elmore.  If  this  be  true,  no  fraud  was 
committed.  Second,  that  he  purchased  the  goods  without  any 
knowledge  of  the  complainants'  claim.     ( See  Mowry  vs.  Walsh, 

8  Cowen  R.,  238.) 
The  answer  further  discloses  such  circumstances,  in  relation 

to  the  knowledge  of  F.  W,  H.  Elmore  of  the  manner  in  which 
the  business  was  conducted,  as  must,  in  all  probability,  establish 
his  liability,  if  any  doubt  existed  on  that  subject. 

The  circumstance  of  the  defendant,  Hicks,  having  taken  a 
separate  guaranty  of  W.  H.  Elmore,  is  urged  as  strong  evi- 
dence of  fraud.  It  may,  perhaps,  lead  to  a  conjecture,  that 
Hicks  was  suspicious  that  W.  H.  Elmore  had  some  individual 


270  CASES  IN  CHANCERY. 

Firsi Circuit,  intcrcst  ID  the  property;  but,  accompanied  as  it  is,  by  the  posi- 
'^"^f'y"^^  tive  denial  of  Hicks,  of  any  knowledorc  of  the  complainants' 
Elmore,  claims,  and,  also,  the  statement  in  his  answer,  that,  according 
to  his  knowledge  and  belief,  the  goods  were  really  the  proper- 
ly of  F.  W.  H.  Elmore,  cannot  be  regarded  as  such  a  badge 
of  fraud,  as  would  render  the  sale  to  him  fraudulent  and  void. 

The  answer  is  objected  to,  as  not  being  full  and  perfect. 
The  rule  laid  down  in  Hunt  vs.  Wallace,  6  Paige  R.,  377,  and 
which  has  before  been  recognized  in  this  court,  in  the  case  of 
the  Bank  of  Michigan  vs.  Williams,  (ante  219,)  is,  that  the  de- 
fendant must  either  furnish  the  answer  which  he  proposes  to  put 
in,  or  state  his  defence  so  fully  in  his  affidavit,  that  the  court 
may  see  that  injustice  would  probably  be  done,  if  the  order, 
taking  the  bill  as  confessed,  is  permitted  to  stand. 

The  court  should  require  a  full  answer,  and,  if  satisfied  that 
the  answer  was  intentionally  evasive,  would  refuse  to  set  aside 
the  order. 

Such  is  not  the  case  here.  The  answer  discloses  sufficient 
to  show,  that  injustice  would  probably  be  done,  if  the  order  is 
permitted  to  stand.  Should  the  court  undertake  to  look  into 
a  further  or  amended  answer,  it  would  involve  a  re-examina- 
tion of  the  papers,  which  may  as  well  be  done  by  a  master. 
Besides,  the  court  is  not  fully  satisfied  that  the  answer  will  be 
found  insufficient;  but,  as  the  court  is  inclined  to  ihink  the  com- 
plainant may  be  entitled  to  a  further  discovery  in  some  particu- 
lars, the  defendant  should  be  compelled  to  answer  such  excep- 
tions, as  may  be  allowed,  promptly. 

The  order,  taking  the  bill  as  confessed,  must  be  set  aside, 
upon  payment  of  costs  of  entering  the  order,  and  of  this  mo- 
tion, and  the  defendant's  undertaking  to  answer  such  excep- 
tions as  may  be  allowed  by  the  master,  within  five  days  after 
the  same  may  be  filed,  and  upon  stipulating  that  the  complain- 
ants may  be  examined  as  to  the  particular  goods  sold  to  El- 
more, saving  all  exceptions,  except  as  to  the  competency  of  re- 
ceiving such  testimony. 


CASES  IN  CHANCERY.  1371 

After  the  order  of  the  chancellor,  directing  the  opening  of  First  circuit, 
the  order,  pro  c..nfesso,  entei'ed  against  Hicks,  and  after  Hicks  ^^"f^'^ll^^ 
had  filed  and  served  a  copy  of  his  answer,  denying  the  fraud    ^i"^^^^ 
charged  against  Elmore,  and  setting  up  the  defence  of  a  bona 
fide  purchaser,  without  notice,  &c., 

B.  F.  Cooper,  for  complainants,  moved,  ex  parte,  on  the  or-  Decembers, 
der,  pro  confesso,  against  Elmore,  for  want  of  appearance,  for  a 
final  decree.     Cited  1  Smithes  Cli.  Prac,  G4,  174-5. 

No  person  appearing  for  defendant,  Elmore,  the  complain- 
ants took  their  final  decree,  ex  parte,  against  Elmore,  for  the 
full  amount  claimed  in  the  bill,  and  costs. 

H.  N.  Walker  gave  notice  of  retainer  for  defendant  EI- Febroaryn. 
more,  and  moved  (on  the  affidavit  of  Elmore,  of  irregularities, 
&c.,)  for  an  order  for  complainants  to  show  cause  why  the 
final  decree  entered  December  8,  against  Elmore,  should  not 
be  set  aside  for  irregularity.  The  chancellor  granted  the  or- 
der to  show  cause. 

B.  F.  Cooper,  for  complainants,  showed  cause.  February  23. 

I.  The  decree  in  this  cause  cannot  be  set  aside  on  the  ground 
of  the  insufficiency  of  the  papers  on  which  the  motion  is  foun- 
ded. 

1.  Because  after  the  entry  of  an  order,  pro  confesso,  it  is  a 
general  rule,  that  it  cannot  be  set  aside  without  a  production 
of  the  answer  intended  to  be  filed.  The  exception  in  the 
books  was  in  the  case  of  a  non  resident,  and  then  the  motion 
was  made  before  enrolment.  5  Paige,  164;  6  Paige,  377; 
The  last  case  was  before  decree  entered. 

2.  After  the  enrolment  of  the  decree,  the  rule  is  now  believ- 
ed to  be  universal,  that  the  application  to  set  it  aside  must  be 
on  the  production  of  the  sworn  answer  proposed  to  be  filed 
with  a  full  affidavit  of  merits.  1  Hnffm.  Pr.,  551;  1  Johns.  Ch., 
541,  631;  1  Paige,  430;  3  lb.,  407;  2  Ves.  S^  Beam.,  184;  3 
Johns.  Ch.,  424. 

II.  If  the  papers  on  which  the  motion  is  founded,  be  not  in- 
sufficient in  their  character,  they  are  too  defective  to  allow 
the  relief  sought  for  by  the  defendant. 


272  CASES  IN  CHANCERY. 

Firstcircuit,      1.  The  paper  served  as  an  affidavit^  is  in  form,  a  petition. 
'^'fr^^^'^^  Petitions  must  always  be  sworn   to,  and  an  exact  copy  with 

Graham  •'  '  ^  ■' 

Elmore,     the  jurat,  scrved.     1  Hopks.,  101;  3  P<-«'|-e,  280. 

2.  If  the  paper  is  an  affidavit,  an  exact  copy,  including  the 
jurat,  should  be  served;  it  should  be  governed  by  the  rules  re- 
lating to  equity  pleadings  under  oath.  1  Hojjks.,  101;  3  Paige, 
280. 

3.  It  is  entitled  in  the  cause  of  complainant  vs.  Elmore  and 
Hicks.  It  asks  for  relief  in  two  causes,  viz:  complainant  vs. 
Hicks  and  Elmore,  and  complainant  vs.  Elmore.  This  is  en- 
tirely irregular.  The  relief  sought  for,  should  have  been  con- 
fined to  one  cause,  or  the  papers  should  have  been  entitled  in 
both  causes,  or  there  should  have  been  two  sets  of  papers,  and 
two  motions.  No  indictment  would  lie  on  this  affidavit,  for 
any  false  swearing  as  to  matters  in  the  case  of  Elmore,  alone. 
2  Cowen,  509;  Graham^ s  Pr.,  2d  Ed.,  678.  The  order  staying 
the  examinalion  of  the  defendant,  is  wholly  irregular,  having 
been  granted  without  any  papers  being  served  in  the  cause,  to 
warrant  it, 

4.  The  notice  for  this  motion,  is  signed  H.  N.  Walker,  who 
is  only  solicitor  in  the  case  of  Hicks  and  Elmore,  and  is  enti- 
tled in  that  cause  alone.  Vide  complainants'  affidavit.  It  dif- 
fers from  the  order  to  show  cause.  The  notice  rests  upon  ir- 
regularity  alone. 

5.  The  order  to  show  cause,  is  entered  on  motion  of  Doug- 
lass and  Walker,  who  are  not  solicitors  in  the  cause  in  which 
the  papers  and  notice  of  motion  is  entitled.  The  order,  as  en- 
tered, is  irregular,  and  if  not  a  nullity,  should  be  vacated. 
None,  save  the  solicitors  in  a  cause,  can  make  motions  therein. 
Hopks.,  369. 

III.  The  decree  must  be  set  aside  for  the  want  of  proper 
evidence,  that  defendant,  Elmore,  has  a  good  and  sufficient 
defence. 

1.  The  affidavit  and  petition,  have  none  of  the  usual  formula 
of  an  affidavit  of  merits. 

2.  It  does  not  directly  state  that  defendant  has  merits,  but 
states  it  in  such  a  manner  as  to  leave  it  doubtful  what  he  does 
mean. 


CAJSES  IN  CHANCERY.  273 

3.  The  affidavit  mis-states  the  effect  of  Hick's  answer;  the  First  circuit, 
answer  realJy  states  that  Hicks  is  a  bona  fide  purchaser,  with-  "■^^■''^^ 
out  notice;  it  alledges  that  he  knew  nothing  of  the  representa-        " 

Elmore. 

tions  made  to  complaniants,  but   believes  Elmore  had  autho- 
rity. 

4.  Defendants  have  no  defence  under  this  answer,  as  the 
fradulent  representations  are  not  in  issue.  It  is  a  defence,  in- 
dependent  of  them,  and  good,  whether  th  ^y  were  made  or  not. 
The  defence  arises  from  a  distinct  mailer,  and  subsequent  to 
Elmore's  fraud. 

5.  The  aiHdavit  shows  that  Elmore's  neglect  to  appear  and 
answer,  as  required  by  the  or.Ji  r  and  |  raciice  of  the  court, 
was  the  result  of  ddiberation  and  design — a  mode  of  dt fence, 
selected  as  well  calculated  to  embarrass  complainants,  as  a  re- 
gular defence,  according  to  the  rules  and  orders  of  the  court. 

G.  It  appears  that  this  was  done  by  the  advice  of  counsel. 
Hicks,  it  seems  by  his  dcfencj,  is  to  defend  Elmoi-e,  and  Elmore  \ 
to  be  saved  the  expenses  of  a  solicitor.  Elmore  is  to  take  the 
chances  of  successful  defence  by  Hicks,  and  get  rid  of  the 
debt,  and  the  trouble  of  litigation  and  iis  costs.  If  Hicks  fails, 
at  the  end  of  a  protracted  liligaiiou,  then  Elm  we  seems  to  sup- 
pose he  may  come  in,  renew  the  fight,  and  take  the  chances  of 
war.  In  the  meantime,  these  two  complainants  are  to  stand,  and 
see  these  two  defendants  use  up  ih.ir  goods,  without  paying  for 
them,  and  encounter  the  delays  and  losses  and  vexations  of 
litigation.  Will  a  court  of  equity  listen  to  an  affidavit  of  such 
a  character  as  this  1  It  would  be  a  stain  on  the  administration 
of  justice. 

IV.  The  cases  of  opening  decrees  are  all  limited  to  the  open- 
ing the  enrolment.  After  creditor's  bill  is  filed,  no  such  appli- 
cation has  been  or  should  be  granted;  G  Paige,  254.  The  affi- 
davit of  complainants  shows  that  the  order  to  answer  is  nearly 
out  in  the  creditor's  bill.  The  order  to  stay  proceedings  and 
show  cause,  is  served  after  defendant  is  on  his  examination  to 
discover  his  property.  After  taking  the  chances  of  the  first 
suit,  he  has  taken  all  the  chances  of  the  second,  to  the  time 
when  he  is  about  to  be  compelled  to  discover  his  property.  If 
this  motion  be  granted,  its  effects  in  other  suits  will  be  most 

Vol.  I.  35 


274  CASES  IN  CHANCERY. 

Firetcircuii.  (Jisastrous.  Defendants  will  lie  by  until  called  to  answer  or 
Graham  djscover,  when  they  will  thus  seek  to  come  in,  after  a  great 
Etoore.  lapse  of  time.  In  the  meantime,  their  property  will  be  either 
fairly  or  fraudulently  disposed  of,  and  the  coni}^  lainants  will  be 
thrown  back  to  the  filing  of  the  bill,  to  fight  a  defendant  who'has 
thus  managed  to  delay  his  proceedings  and  discover  his 
strength. 

V.  If  the  decree,  pro  confess©,  can  be  set  aside  after  filing  a 
creditor's  bill,  there  is  no  sufficient  ground  for  it  shown  on  this 
application,  either  in  the  complainant's  mode  of  proceeding,  or 
in  the  merits  disclosed  by  the  defendant's  affidavit. 

It  is  objected,  first:  Tha'.  the  affidavit  shows  execution  put  in 
the  sheriff's  hands  on  the  return  day.  Affidavit  of  complainants 
denies  it;  it  was  some  days  before  the  return.  If  it  were  not,  no 
collusion  is  charged  by  defendants;  without  this  charge,  the  re- 
turnof  the  sheriff  cannot  be  impeached.     2  Paige,  408. 

It  is  objected,  second:  That  the  decree  against  Elmore  was 
entered  up  while  the  cause  was  not  even  at  issue  against  Hicks; 
answer,  there  is  a  decree,  pro  confesso,  against  Hicks,  not  yet 
opened. 

Answer  2.  That  bill  for  fraud  is  like  an  action  in  the  case 
at  law.  for  a  tort.  There  one  defendant  may  suffer  judgment 
by  default,  another  may  give  a  cognovit;  one  may  be  found 
not  guilty  by  verdict,  and  the  other  guilty;  in  such  case,  the 
tort  is  joint  and  several.  So  in  this  bill  for  fraud;  there 
may  be  an  order,  pro  confesso,  against  one  defendant,  and 
a  decree  while  the  cause  may  proceed  against  the  other,  who 
may  have  a  decree  in  his  favor.  Smitli's  pr.,  174-5;  2  Paige, 
102;  7  Jo/,ns.  Ch.,  194;  this  bill  is  in  substance,  an  action  on  the 
case.  Why  wait,  after  an  admission,  by  Elmore,  of  the  fraud? 
7  Paige,  448;  1  Peters,  80. 

VI.  U  cither  of  the  two  last  mentioned  grounds  are  suffi- 
cient to  set  aside  a  decree  after  enrolment,  it  can  only  be  on  a 
bill  of  review,  or  an  appeal.  If  there  is  error,  the  error  is 
one  of  law.      Cooper^ s  pi. ,  88-9,  90. 

VII.  If  the  deci'ee  is  set  asiJe,  it  should  be  on  the  terms  of 
paying  all  the  costs  of  both  suits  aad  of  this  motion.  1  Johns. 
Ch.,  541,  631;   1  Paige,  430;  3  lb.,  407. 


CASES  IN  CHANCERY.  275 

The  affidavit  nnd   examination  of  complainants   show,  that  F'rsicircuii. 
during  defc  idanl's  delay  in  answering,  he  has  appropriated  F.     Graham 
W.  H.  Ehnore's  firoperty  in  such  a  Wuy,  that  if  the  affidavit     Eimorc. 
is  true,  complainants   can  get   nothing   of  F.  W.   H.  Elmore. 
This  is  as  effectually  preventing  the  payment  of  complainant's 
debt,  as  if  a  witness  had  died,  as  in  1  Johns.  Ch.,  541. 

VJII.  The  complainants  are  entitled  to  the  costs  of  this  mo- 
tion, and  the  court  may  give  interleventory  costs,  as  for  a  con- 
tempt of  court,  to  be  ascertained  in  their  amount  by  the  couit, 
notwithstanding  the  act  of  February  10,  1841,  (relating  to 
fees.)  If  this  motion  is  made  fur  irregularity,  it  is  too  late, 
4  Paige,  288;  Grakam'spr.,  (2  ed.,)  081, 748;  2  Jac.  law  diet.,  51. 

H.  N.  Walker,  for  Elmoi'c. 

1.  The  defence  of  one  party  avails  his  co-defendant,  if  the 
cause  depends  upon  the  same  facts.  1  Hoff.  Pr.,  554;  10  John 
Rep.,  534. 

2.  A  cause  cannot  be  heard  against  several  defendants  in 
the  absence  of  the  rest,  although  no  decree  be  asked  against 
them.  The  bill  must  first  be  formally  dismissed  as  to  them.  4 
Bridgman's  Digest,  283;  2  Paige  R.,  572;  1  Peter's  Digest,  441; 
1  Paige  R.,  548,  549;  5  Paige  R.,  638;  2  John.  Ch.  R.,  614. 

Thk  Chancellor.  The  principal  question  involved  in  this 
case  is,  whether,  where  there  are  joint  defendants,  upon  a  pro 
confcsso  being  obtained  against  one  defendant,  and  before  the 
cause  is  at  issue,  or  in  readiness  for  a  hearing  against  the  other 
defendant,  the  complainant  may  enter  a  final  decree  and  issue 
execution  against  the  party  against  whom  the  bdl  has  been 
taken  as  confessed,  and  leave  the  cause  to  proceed  against  the 
other  defendant  or  defendants.  After  a  very  careful  examina- 
tion, I  have  been  unable  to  find  any  case  in  which  this  ques- 
tion has  been  distinctly  presented.  It  is  the  uniform  rule,  that 
a  final  decree,  or  an  interlocutory  decree,  which  in  a  great 
measure  deciles  the  merits  of  the  cause,  cannot  be  pronounced 
until  all  the  parlies  t  >  the  bill,  and  all  the  parties  in  interest  are 
before  the  court.     5  Wheaton,  542. 

This  rule  is  usually  applied  to  cases  where  the  complainant 


Graham 
vs. 

Elmore. 


276  CASES  IN  CHANCERY. 

First cirruit.  j^as  HOt  made  proper  parties  to  his  bill,  or  where  the  proper 
parlies  having  betn  made  to  ihe  bill,  the  complainant  has  not 
taken  ihc  necessary  sieps  to  bring  them  before  the  court;  but 
does  not  the  reason  of  the  rule  apply  to  a  case  hke  the  present; 
the  party  who  has  answered  in  this  cause,  although  as  to  that 
part  of  the  bill  which  relates  to  Elmore  alone,  he  denies  the 
allegations  upon  his  knowledge  and  belief,  has  put  in  issue  the 
whole  merits  of  the  bill. 

Before  the  cause  is  ready  for  a  hearing,  the  complainant  en- 
ters his  final  decree  against  the  defendant  who  has  not  appear- 
ed, and  issues  his  execution  thereon  for  the  full  amount  claimed, 
leaving  the  cause  to  proceed  against  the  other  defendant,   be- 
fore the  parties,  or  rather  before  the  merits  of  the  cause  are 
before  the  court,  so  as  to  enable  it  to  make  a  final  decree  upon 
the  whole  case,  when  it  may  perhaps  become  the  duty  of  the 
court,  upon  the  hearing,  to  declare  that  the  complainants  have 
no  equity  whatever.     I  think  the  rule  above  stated,  goes  to  the 
extent,  that  the  court  will  not  adjudge  upon  a  part  of  the  case 
in  this  way.     It  will  not  make  a  final  decree,  until  the  cause  is 
properly  presented,   in  such  a  form  as  wi!l  enable  the  court  to 
make  a  final  disposition  of  the  cause,  and  do  justice  to  all  par- 
ties to  the   suit.      In  2  P'lige,  572,  C/'/y  Bank  vs.  Bangs,   it  is 
decided,  that  where  the  defendants,  or  any  of  them,  deny  the 
allegations  in  the  complainant's  hill,  or  set  up  distinct  facts  in 
bar  of  his  right  to  file  the  bill,  he  must  file  a  rejilication,  give 
rules  to  produce  witnesses,   and   close  the  proofs  before  the 
cause   is   heard.     It   is   settled,   that  although  a  cause  may  be 
in   readiness  for  a  hearing  against  one  defendant,   and  when 
other  defendants  as  to  whom  the  cause  is  not  in  readiness,  the 
defendant  who  has  appeared  and  answered   cannot   notice  the 
cause  for  a  hearing,  but  must  move  to  dismiss  the  bill  for  want 
of  prosecution.      Vennyb'.d  vs.   Odell,   4   Paige,  422.      This  he 
cannot  do,  if  the  cause  is  in  such  a  situation  that  it  may  be 
noticed  for  a  hearing  by  either  party.     This  is  confirmatory  of 
the  rule,  that  the  court  will  not  grant  a  final  decree,  until  the 
cause  is  in  readiness  for  a  hearing  as  to  all  the  parties. 

It  has  been  urged  that  the  court  cannot  interfere  in  this  way, 


CASES  IN  CHANCERY.  277 

but   thnt  the  defendant  must  be  left  to  his  appeal,  or  a  bill  of  ^'^^'^'''■'="''- 
review.     And  this  brings  us  to  another  objection  to  this  form     oruU:-m 
of  proceeding.     I  do  not  see  how  an  appeal  can  be  taken  in     Eimore. 
this  stage  of  the  cause.     The  case  is  still  pending  and  proceed-  , 
ing  in  this  court,  as  against  one  defendant,  while  it  may  be 
proceeding  in   the   appellate  court,  upon  appeal,  against  the 
other  defendant,  if  the  appeal  could  be  sustained  by  the  supreme 
court.     It  would  render  the  practice  and  proceedings  anoma- 
lous and  inconvenient,  if  this  court  were  to  pursue  this  course, 
and  render  final  decrees  in  succession,  against  several  defend- 
ants,   in  this  way,  as  fast  as  the  complainant  should  perfect 
his  proceedings  against  each  of  the  several  defendants.     A  de- 
cree by  default  may  be  set  aside  on    motion;   1  Ilojfmaii's  Pi:, 
419;  and  the  court  decides,  on  motion,  where  the  facts  appear, 
and  there  is  noting  to  dispute  about  but  the  law  of  the  court. 
lb.,  420. 

Some  other  questions  were  raised  at  the  argument.  It  is 
objected  that  the  order  to  show  cause  was  entered  on  motion 
of  Douglass  and  Walker,  when  H.  N.  Walker  is  the  solicitor 
of  record.  The  papeis  are  signed  and  notices  given  by  H.  N. 
Walker,  the  solicitor  in  the  cause,  and  the  order  to  show  cause 
being  granted  on  motion  of  Douglass  and  Walker,  is  immate- 
rial. The  complainants  could  not  been  have  misled,  and  the  or- 
der would  have  been  valid,  without  the  insertion  ot  the  name  of 
any  solicitor.  The  fact  that  the  jurat  annexed  to  the  petition, 
was  not  annexed  to  the  copy  served,  would  prevent  its  being 
used  as  proof  of  the  facts  alledged  in  the  petition,  as  the  party 
is  bound  by  the  copy  served.  But  the  motion  is  founded 
upon  the  record  and  proceedings  in  the  cause,  as  well  as  upon 
petition,  which  disclose  the  facts  in  the  same  manner.  The 
objection  that  the  papers  being  only  entitled  in  the  case  of  El- 
more and  Hicks,  cannot  be  used  in  the  case  against  Elmore 
alone,  is  technically  correct,  and  the  order  must  be  confined  to 
that  case.  But  from  the  view  I  have  taken,  that  the  decree 
taken  against  Elmore,  in  the  case  of  Elmore  and  Hicks,  was 
irregularly  entered,  and  must  be  set  aside;  it  must  follow^  t!iat 
all  proceedings  founded  upon  that  decree,  must  fall  with  it. 


278  CASES  IN  CHANCERY. 

Firstcircuit.  After  the  defendant  has  omitted  to  make  his  defence,  as  has 
Grnham  been  the  case  here,  I  interfere  in  this  way  with  reluctance. 
Elmore.  But  the  casc  being  presented,  I  am  bound  to  settle  the  practice 
of  taking  decrees  against  one  of  several  defendants,  in  this 
way,  either  in  one  way  or  the  other,  and  of  the  inconvenience 
and  irregularity  of  this  course  of  proceeding,  I  entertain  no 
doubt.  The  final  decree  entered,  in  this  cause  against  Elmore, 
must  be  set  aside  and  vacated,  leaving  the  order  taking  the  bill 
as  confessed  against  him,  of  force,  so  that  no  obstacle  may  ex- 
ist to  taking  a  decree,  whenever  the  cause  shall  be  in  readi- 
ness, for  a  final  disposition;  or  if  the  complainant  shall  so 
elect,  with  leave  to  set  aside  the  pro  confcsso,  and  require  an 
answer. 

Decree  set  aside. 


CASES  IN  CHANCERY.  279 


Agnes  McLean  and  others,  vs.  Jacob  L,  Barto^t  and  dhers. 

Whether  by  section  ihrce  of  the  Ilcpealing  acicoTiUained  in  the  Revised  Statutes,  (R.  S.  697,)  First  Circuit 
it  was  intended  to  continue  in  force  the  provisions  of  the  acts  of  limitation,  repealed  hy  that 
act  where  the  time  had  "  begun  to  run,  "  or  whether  the  time  prescribed  in  the  Revised  Stat- 
utes was  intended  as  the  period  at  the  expiration  of  which  llie  suits  be  barred,  quare. 

The  statutes  of  limitations  and  lapse  of  time  may  be  taken  adtantage  of  on  demurrer. 

Where  the  action  was  not  commenced  for  upwards  of  twenty  years  after  the  right  of  aclffln 
accrued  and  no  disability  or  excuse  for  the  delay  pretended,  and  no  new  discovery  of  facta 
suggested,  and  both  the  person  charged  with  committing  the  fraud,  and  hia  grantee  were  dead^ 
the  Court  refused  to  sustain  the  suit,  by  reason  of  the  lapse  of  time,  and  held  that  the  case 
could  not  be  aided  by  proof  of  facts  which  vferenot  put  in  issue  by  the  pleadings. 

A  Court  of  Equity  will  lend  its  aid  to  detect  and  redress  a  fraud,  notwithstanding  the  lapde  o 
lime  ;  but  when  the  fraud  is  discovered,  the  parlies  must  act  upon  that  discovery  within  a  rea. 
sonable  time.  The  party  seeking  redress  should  not  wait  until  all  those  who  were  cognizaw^ 
ol  the  transaction  should  have  paid  the  debt  of  nature  and  tjniil  no  one  was  left  to  denj  or 
explain  the  allegations  without  giving  any  excuse  for  such  delay. 

The  bill  in  this  case  stated  that  in  1816,  Robert  Smart,  now  de- 
ceased, obtained  a  deed  of  conveyance  of  lots  number  61  and  62  in 
section  three  in  the  city  of  Detroit,  representing  himself  to  be  the 
Assignee  of  Catharine  Bailey,  the  Assignee  of  John  Murphy,  the 
Assignee  of  David  McLean;  lo  whom  the  lots  had  been  granted  by 
the  Governor,  and  judges  of  the  Territory  of  Michigan,  acting  as  a 
Land  Board,  but  that  the  deed  nraking  said  grant  was  not  delivered^ 
by  the  Governor  and  judges  to  said  McLean. 

The  bill  prayed  for  a  conveyance  of  the  lots  to  the  ccmplainants, 
the  legal  representatives  of  David  McLean. 

The  defendants  put  in  a  general  demurrer. 

A.  D.  Fraser  in  support  of  the  Demurrer. 

First.  Agnes  McLean,  the  widow  of  David  McLean,  has  no  ap'- 

parent  interest  in  the  controversy,  nor  any  equity  as  against  the  de-' 

fendants  or  any  of  them,  and  therefore  a  general  Demurrer  will   lie 

to  the  whole  bill.     3  Paige  336. 

Second.  UndeV  this  Demurrer'we  rely  on  the  statute  of  limitations 
Vol.  I.  36 


280  CASES  IN  CHANCERY. 

First  Circuit,  as  a  bar  to  any  relief.     "From  the   earliest   ages,  Courts  of  Equity 

McLean    "  h^ve  refused  their  aid  to  those  who  have  for  an  unreasonable  lengti^ 

Ba/t'on.     "of  ^''""6  neglected  to  assert  their  claims,  especially  when  the  prop- 

"  erty  in  controversy  has  passed  to  subsequent  purchasers.    Although 

'  statutes  of  limitations  do  not  extend  to  suits  in  Chancery,  yet  Courts 

' '  of  Equity  will  acknowledge  their  obligation.     6  Co7id.  U.  S.  Rep' 

44,  47,  55.     5  Peters,  470.     6  Id.  71. 

The  bar  fj-om  lapse  of  time  need  not  be  set  up,  by  Demurrer,  an- 
swer or  plea  but  may  be  suggested  at  the  hearing.  1  Baldicin,  418 
419. 

The  statute  of  limitations  may  be  urged  as  a  bar  of  the  remedy  in 
the  form  of  a  Demurrer.  4  Wasli.  089  ;  3  P.  Wnrs,  237  ;  2  Mad. 
Ch.  246. 

In  1  Peters  360,  and  3  Peters  44,  the  Court  say,  "  that  the  statute 
"  ought  to  receive  such  a  construction  as  will  effectuate  the  benefi- 
"  cial  objects  which  it  intended  to  accomplish  ;  the  security  of  titles 
"  and  the  granting  of  possessions.  "'     7  John  C.  R.  90  122. 

And  courts  give  effect  to  its  regulations  upon  equitable  titles.  5 
Mason  112;  2  Jac.  S^  Wal  137,  191;  1  Sell  Sf  Lef.  413, 
428. 

This  suit  should  have  been  instituted  within  ten  years  from  the 
fifth  of  November,  1829.     Laws  1833,  page  408,  9. 

Now  if  David  McLean  ever  had  any  rights  they  accrued,  as  ap- 
pears by  the  bill  on  the  execution  of  the  deed  by  the  Governor  and 
judges  to  Smart,  dated  fifth  November,  1816.  No  new  right  accrued 
to  the  party  subsequent  to  that  time. 

Third.  It  does  not  appear  that  McLean  ever  acquired  title  to  the 
property,  for  it  is  expressly  stated  that  the  deed  was  never  delivered. 

Fourth.  It  is  not  shown  by  the  bill  that  McLean  was  entitled  to  a 
deed  for  a  lot  in  Detroit.     Laics  1820,  piage  14. 

Backus  &;  Sea.max,  contra. 

First.  A  demurrer  must  express  'the  several  causes  of  demurrer. 
Mitfords  Pe.  3d  A7n.  Ed.  page  213  ;  Ordinance  in  Chy  Ed.  Beanies 
77  and  175  ;  Story's  Eq.  PL  page  357  and  359^  sec  455  a7id  457 
Equity.  Draftsman,  4:19  to  425;  Maddocks  Ch.  1st  Ed.page22Q. 

Second.  If  a  demurrer  is  general  to  the  wholcbill  as  in  this  casej 


CASES  IN  CHANCERY.  281 

and  there  is  any  part  either  as  to  the  relief  or  the  discovery  to  which  '^'"'  '^"■''"" 
det'endant  ought  to  answer,  the  demurrer  being  entire  must  be  over    McLean 
ruled.     Mi'fords  PI.  2d  Am  Ed.  214.  Barton. 

Third.  A  general  demurrer  as  contradistinguished  from  a  special  de- 
murrer isademurror  for  want  of  equity.  Slorij^s  Eq.  II  jj  3.57,  sec. 
455.  All  other  demurrers  are  called  special  demurrers,  to  distinguish 
them  from  demurrers  for  want  of  equity,  and  the  causes  of  demurrer 
must  be  particularly  assigned. 

Though  all  demurrers  to  the  whole  hill  are  called  in  legal  parlance 
general  demurrers,  let  them  be  ever  so  special  in  tlieir  nature  to  dis- 
tinguish them  from  j^rtial  demurrers.  Mitfords  Eq.  PI.  I ij  Jeremy, 
214.     Maddocks  Ch.  226. 

.  Fourth.  A  demurrer  for  want  of  parties  was  put  in,  in  the  case  of 
Davculvs.  Fanning  4  John,  Ch.  R.  201.  and  the  cause  of  want  of 
parties,  specially  assigned,  see  also,  rule  29  of  this  court. 

Fifth.  The  deed  executed  by  the  Governor  and  judges,  and  their 
assigning  and  designating  the  lots  as  lots  to  be  deeded  to  McLean  was 
in  pursuance  of  the  statute  of  the  United  States,  and  of  his  assign- 
ment to  them,  and  also  in  full  payment  for  his  lot,  and  was  there- 
fore for  a  valuable  consideration,  and  though  not  good  inlaw  for  wanx 
of  delivery,  was  good  in  equity  to  pass  an  equitable  title  to  the  prem- 
ises to  McLean.     Wadsworth  vs.   Wendell  5  John  Ch.  224. 

Sixth.  We  have  alleged  fraud  on  the  part  of  Smart,  and  brought 
notice  of  the  fraud  home  to  the  defendants,  which  vitiates  and  renders 
null  and  void  the  defendants  title.  Equity  grants  relief  not  only 
against  deeds,  writings  and  solemn  assurances,  but  also  against  judg, 
ments,  and  decrees  obtained  by  fraud  and  imposition.  Reigal  vs. 
Wood,  1  J.  C.  R.  402  ;  John  Digest,  j)  245;  sec  729,  decided  by 
Chan.  Kent;  and  Bansleyvs.  Poivell,  1  Vcs.  120,  decided  by  Lord 
Hardwick;  and  Heirs  of  Ware  vs.  Henry  Brush,  1st  McLean's  Rep. 
434  to  438. 

Seventh.  If  the  Laws  of  Michigan  in  1816,  as  to  married  women 
and  widows  were  not  more  barbarous  than  even  the  common  law  of 
,1'^ngland  as  modified  by  the  statute  of  Distributions,  of  Charles,  Mrs. 
McLean  was  entitled  to  a  distributive  share  of  her  husbands  estate, 
including  the  property  in  question.     See  Tollers  Laws  of  Ex'rs.  371. 


282     '  CASES  IN  CHANCERY. 

First  Circuit      gy  ^j^g  ^j^^gj  section  of  the  ordinance  of  Congress  of  1787   she  is 
McLean    entitled  to  a  distributive  share  of  one  third  of  her  husband's  personal 
Barton,    estate  after  paying   debts,  and  a  dower  of  one  third  of  his  real  es- 
tate.    See  iaws  of  1833,  page  23. 

Eighth.  The  statute  of  limitations  of  November  6th,  1829,  on 
which  the  defendants  counsel  rely  to  bar  our  action  in  ten  years,  was 
repealed  April  sixth,  1838.  See  Revised  Statutes,  page  693, 
which  repeal  took  effect  Augu3t  31st,  1838,  the  second  section  of 
the  repealing  act,  R.  S.  page  697,  substituted  the  Revised  Statutes, 
and  the  limitation  therein  provided,  R.  S.  page  573,  section  one,  we 
come  within  the  first  section  within  the  twenty-five  years. 

The  defendants  cannot  bring  this  cause  within  any  of  the  exceptions 
to  the  repealing  act,  pages  574  and  575,  sections  7  and  8,  but  we  come 
within  the  third  section  on  page  697,  or  else  under  the  old  act  of 
1820  or  some  prior  act. 

We  do  not  come  within  the  saving  clause  of  sec.  7,  page  674  and 
675,  because  our  action  was  not  barred  on  the  31st  August,  1838,  by 
the  act  of  Nov.  5th,  1829, 

The  eighth  section  of  Revised  Statutes  page  575,  does  not  subject 
us  to  the  act  of  November  fil'th,  1829,  because  by  the  express  terms 
of  that  section,  "  all  causes  of  action  accruing  previous  to  tlie  thirty- 
first  day  of  August,  1838,  shall  be  determined  by  the  law  under  which 
such  right  of  action  accrued,"  and  our  action  accrued  long  prior 
to  the  passage  of  the  act  of  November,  1839,  or  else  it  did  not  occur 
until  the  payment  of  the  purchase  money  by  Mrs.  Campbell  to  Smart 
in  1835  or  1836. 

According  to  said  8th  section  R.  S.  page  575,  I  suppose  our  rights 
must  be  decided  according  to  the  statutes  in  force  when  our  cause  of 
action  accrued,  which  must  have'been  when'Smart  entered  under  his 
deed,  which  bears  date  December  16th,  1816.  He  may  not  have  en- 
tered until  some  years  afterwards  ;  when,  does  not  appear. 

In  the  State  of  Ohio  by  an  oversight  of  the  legislature,  the  statutes 
of  limitations  did  not  embrace  actions  of  debt  on  simple  contract  pre- 
vious to  the  act  of  1824,  so  that  you  can  to  this  day,  by  the  construc- 
tion of  their  statute,  sue  on  a  promissory  note,  or  for  work  and  labor, 
or   goods  sold  previous   to   1824  in   an   action  of  debt,  and  there 


CASES  IN  CHANCERY.  2fi3 

is  no  statute  to  bar  the  action.    Tapper  vs.  Tiipper  2d  Ohio  Eep.  389.  First  Cirmi, 
{S.  C.  Ohio  cond.  Rep.  Gl.'i  616.;  Moiym, 


v$. 


The  settled  construction  of  statutes  of  limitation  in  Ohio  is  that  no     Banon. 
statute  shall  apply  to  causes  of  action   which  accrued  previous  to  its 
passage.     All  sach  acts  shall  be  prospective    only — and  all   actions 
shall  be  barred  only  by  the  statutes  in  force  at  the  time  they  accrued. 
The  case  of  Chalmandehj  vs.  Clinton   2d   Jacols  Sf    Walker  191 
and  192  was  put  expressly  upon   the  statute  of  limitations   of  King 
James — see  Lord   Redesdales  opinion,  latter  part  on  page  192.     We 
do  not  deny  the  position  that  Courts  of  Equity  will  carry  into   effect 
statutes  of  limitation  (though  they  do  not  expressly  apply  to   them) 
in  all  cases  where  the  statute  would  be  a  bar  at  law,  if  an    action  at 
law  was  brought  for  the  same  subject  matter.     The   decisions  in  2nd 
Jacobs  Sf  Wa/ker,19l    and    192— 1  John   Ch.  Rep.  114:    to   126—6 
Cond  U.  S.  Rep.  44,  47,  and  55—5  Peters,  470;  and  6th  Petersll 
Zd  Peer  WiUiams  Cook  vs.  Amhain,  are  all  put  expressly    upon  the 
ground  of  the  statute  of  limitations,  and  that  the  statute   would  be   a 
bar  to  a  recovery  at  law  for  the  same  subject  matter. 

A  case  cannot  be  found  where  mere  lapse  of  time  has  been  held  a 
bar  in  equity,  unless  the  lapse  of  time  has  been  so  great  that  the  stat- 
ute of  limitations  could  be  pleaded  at  law  for  the  same  subject  matter 
or  a  court  of  law  would  presume  an  extinguishment  of  the  claim. 
Such  was  the  express  decision  in  2>rd  Peer  WiUiams  287  ;  and  such 
seems  to  have  •  been  the  grounds  of  the  decision  in  all  the  cases,  and 
particularly  that  in  1th  John  Ch.  Rep.  118  and  122. 

In  the  absence  of  all  explaniatory  or  rebutting  testimony,  even  a  court 
of  law  will  instruct  a  jury  to  presume  a  mortgage,  judgment  or  bond, 
paid  after  the  lapse  of  twenty  years,  and  will  go  so  far  in  such  cases, 
after  great  lapse  of  time  as  to  preserve  a  grant  by  deed  or  lease.  4 
J.  C.  R,  7;  Johnsons  Dig.  _p583..«ec.  174, 176,  177  and  180.  Page 
230  and 231,  sec.  572,574,  dSAand  586;  Sup.  to  John  Dig.  p3ll, 
sec.  160  and  164. 

Ninth.  If  the  statute  were  a  clear  bar,  and  could  be  pleaded  as 
such,  it  is  possible  the  defendants  might  take  advantage  of  it  by  de- 
murrer ;  but  they  can  take  advantage  of  mere  lapse  of  time,  not  com- 
ing within   the  statute  of  limitations  only,  on  the  hearing  upon   an- 


284  CASES  IN  CFIANCERY. 

i-irst  Circuit  g^^p^  jjg  evidence  that  the  plaintiffs  rights  have  been  extinguished,  by 
Mt-r-eaii     a  conveyance,     l^  Peters  152 — Mit fords  Pi.  hy  Jeremy. 


OS. 


Baricn.  The  lapse  ot'  time  being  presumptive  evidence  of  the  extinguish- 
ment of  the  plamtitTs  claims.  Seethe  case  of  Livingston  vs.  Livings, 
ton,  4  J.  C.  R.  287  ;  Jolin  Dig.  2Jage2''M,  sec.  586.  Such  presump- 
tive evidence  plaintiffs  have  a  right  to  rebut,  which  they  would  bo  pre- 
cluded from  doing,  if  tlie  lapse  of  time  could  be  taken  advantage  of 
on  demurrer.  The  demurrer  also  admits  the  plaintiffs  claims  and 
rights  as  stated  in  the  bill  ;  and  the  defendants  are  guilty  of  the  in_ 
consistency  of  admitting  the  plaintiffs  rights  by  the  demurrer,  and  at 
the  same  time  insisting  that  the  lapse  of  time  is  presumptive  evidence 
of  an  extinguishment  of  these  very  rights  which  are  thus  admitted. 
Eraser  in  reply. 

It  is  incontrovertible  that  the  legislature  by  the  provisions  of  the 
Revised  Statutes,  intended  to  reserve  to  suitors  the  benefits  of  the  stat- 
utes of  1820  and  1829  and  all  tights  accruing  under  them.  Revised 
Laws  page  575,  sec.  7  and  8;  Laws  of  1833,  571  sec.  6;  Laius  of 
1833,  408  9. 

A  reference  to  the  provisions  in  regard  to  personal  actions  clearly 
manifest  this  intention.     Rei-ised  Laics,  page  580,  sec.  25,  27. 

And  this  view  is  fortified  by  the  fact  that  the  Revised  Slatutes  are 
positive  in  their  operation  upon  this  subject,  except  so  far  as  the  old 
statutes  are  declared  to  be  the  goverening  rule  as  to  past  cases. 

In  putting  a  construction  upon  the  provisions  of  the  Revised  Stat- 
utes, the  court  must  compare  all  the  parts  of  the  statute,  and  the  differ- 
ent statutes  in  pari  martina  to  ascertain  the  intention  of  the  legisla- 
ture. And  even  recur  to  the  situation  and  history  of  the  country  to 
ascertain  the  reason  as  well  as  the  meaning  of  many  of  the  provis- 
ions of  a  statute  law.     1  Peter  Dig.  581,  579. 

It  was  clearly  competent  for  the  legislature  to  pass  the  act  of  1829 
now  relied  upon,  and  its  provisions  do  not  conflict  with  any  constitu- 
tional provision,  but  on  the  contrary _,  they  are  reasonable  and  proper, 
expedient  and  just,  and  areTully  sustained  by  the  highest  authorities. 
8  Mass.  430  ;  2  Gallis.  141  ;  3  Peters,  290,  276  ;  5  Id.,  464  ;  3 
Id.  54. 


AlcLeari 

vs. 
Burlon. 


CASES  IN  CHANCERY.  285 

But  independent  of  the  statute  of  limitations  which  it  is  insisted,  con-  Firstcircmt 
stitutes  a  perfect  bar  here,  tiiis  court  will   refuse  its  aid  to  those  who 
have  for  aii  unreasonable  length  of  lime  neglected  to  assort  their  rights 
especially  when  tbe  property   has   passed  to   subsequent  purchasers. 
10  Whealoii,  152  ;  9  Peters,  41G. 

"  This  court  "  will  not  antertain  stale  or  antiquated  demands,  nor 
encourage  laches,  and  negligence.  1  Slory  on  EquHij,  503,  and 
Notes. 

There  is  no  time  fixed  when  it  operates  in  equity.  Baldwin,  419; 
2  Sumner,  212. 

It  appears  by  the  bill  that  the  deed  was  never  delivered  by  the  Go- 
vernor and  judges  to  the  complainant's  ancestor,  (McLean,)  and  con- 
sequently no  title  vested  in  him  in  his  lifetime.  5  Mason,  tiO  ;  12 
Wend.,  107,  8;  6    Cojcen,  G19, 

The  Chancellor. — This  bill  is  filed  to  obtain  the  conveyance  of 
lots  Nos.  61  and   G2  in  section  3  in  the  city  of  Detroit. 

The  bill  alleges  that  the  lots  in  question  were  granted  to  David 
McLean  by  the  Governor  and  judges  of  the  then  Territory  of  Mich- 
igan, acting  as  a  Lond  Board  ;  but  that  the  deed  making  said  grant 
was  not  delivered. 

That  Robert  Smart,  now  deceased,  in  December  1816,  obtained  a 
deed  of  conveyance  of  the  lots  in  question,  representing  himself  as 
Assignee  of  Catharine  Bailey,  Assignee  of  John  Murphy,  Assignee 
of  said  David  McLean. 

It  denies  ihat  McLean  ever  made  any  such  assignment,  and  that 
the  representations  of  said  Smart  to  said  Governor  and  judges  were 
made  to  defraud  them  and  to  defraud  the  complainants.  The  first 
question  raised  under  the  demurrer  is  the  statute  of  limitations. 

The  statute  of  the  5th  November,  1829  required  all  actions  of  this 
kind  to  be  commenced  within  ten  years  from  the  passage  of  the  act. 
This  act  was  repealed   by  the  Revised  Statutes,  the  repeal  to  take 
effect  on  the  31st  day  of  August,  1838. 

The  statute  of  the  15th  May,  1820  required  all  suits  of  this  char- 
acter to  be  commenced  within  twenty  years.  The  suit  in  this  case 
was  commenced  on  the  14ih  I\Iay,  1840. 

The  existing  law,  section  1st,  part  3d,  title  6,  Revised  Statutes,  pro. 


286  CASES  IN  CHANCERY. 

FirstCircuit.  yj^jeg  that  "  DO  person  shall  commence  an  action  for  the  recovery  of 

AicLeaa     "  ^"7  lands,  nor  make  any  entry  thereupon  unless   within  20  years 

Burioii.     "  after  the  right  to  make  such  entry,  or  bring  such  action  first  accrued 

"  or  within  twenty-five  years  after  he  or  those  from  by  or  under  whom 

"  he  claims,  shall  have  been  seized  or  possessed  of  the  premises,  ex- 

"cept  as  hereinafter  provided," 

But  by  the  8th  section  of  the  same  statute,  it  is  provided  that  "where 
"  the  cause  or  right  of  action  or  entry  shall  have  accrued  before  the 
'•  time  when  this  chapter  shall  take  efiect  as  law,  the  same  shall  not 
"be  affected  by  this  chapter,  but  all  such  causes  of  actions  shall  be 
"  determined  by  the  law,  under  which  such  right  of  action  accrued." 
The  last  section  of  the  repealing  act  provides  that  "  in  any  case 
"  where  the  limitation  or  period  of  time  prescribed  in  any  of  the  acts 
"  hereby  repealed,  for  the  acquiring  an}-  right  or  the  barring  any 
•  "  remedy,  or  for  any  other  purposes  shall  have  begun  to  run,  and  the 
"same  or  any  similar  limitation  is  prescribed  in  the  Revised  Statutes^ 
"  the  time  of  limitation  shall  continue  to  run  and  shall  have  the  like 
"  effect  as  if  the  whole  period  had  begun  and  ended  under  the  ope- 
"  ration  of  the  Revised  Statutes.  " 

Whether  this  section  intended  to  continue  in  force  the  provisions  of 
the  acts  of  limitation  thereby  repealed,  where  the  time  had  "begun 
to  run,  "  or  whether  the  time  prescribed  in  the  Revised  Statutes  was 
intended  as  the  period  at  the  expiration  of  which  the  suits  shall  be 
barred  is  perhaps  doubtful. 

What  time  of  limitation  sliall  continue  to  run  1  I  am  inclined  ta 
the  opinion  from  the  whole  of  the  provisions  of  the  statutes,  that  the 
intention  of  the  legislature  was  to  preserve  the  benefit  of  the  statutes 
of  limitation,  which  were  repealed.  But  whichever  construciion  may 
be  given  will  not  from  the  view  I  have  taken  of  the  case,  change  the 
result. 

Whatever  right  David  McLean  possessed  accrued  in  1809.  All  of 
his  right  and  title,  became  vested  in  the  present  complaints,  upon  his 
decease,  and  before  the  deed  from  the  Governor  and  judges  to  Smart 
in  December,  1816.  Their  right  of  action  then  must  have  accrued 
at  that  time.  No  new  or  other  right  has  since  accrued- 
There  is  no  allegation  of  any  disability  or  excuse  made  or  attemp- 
ted for  the  delay. 


CASES  IN  CHANCERY.  UB7 

The  second  ground  urged  upon  the  hearing  is  the  presumption  ari-  F"«"tcircuir, 
sing  from  the  lapse  of  time.  McLean 

There  seems  to  be  now  no  doubt  that  the  statute  of  limitations  may  Banon. 
be  taken  advantage  of,  upon  demurrer  ;  but  vvhether  the  same  rule 
holds  in  this  case,  there  seems  to  have  been  much  diversity  of  opinion. 
One  of  the  earliest  cases  upon  the  subject  is  the  case  of  Delorainc 
vs.  Brotvn,  3  Browii's,  C.  R.,  635.  The  authorities  are  there,  collec- 
ted in  a  note  to  the  case  made  by  Lord  Reddesdale.  The  same  learned 
Judge  afterwards  in  commenting  on  this  case  in  Hoveden  vs.  Lord 
Annesleij,  2  Schoales  Sf  Lefroy,  037,  says:  "  In  the  case  of  Lord 
"Deloraine  rs.  Brown,  an  attempt  was  made  to  take  advantage  of 
"  the  length  of  time  by  demurrer.  The  decision  of  that  case  as  re- 
'*  ported  by  Brown,  does  not  convey  much  satisfaction  to  my  mind  ; 
'*  and  perhapif  the  note  which  follows  will  account  for  the  judgement 
"of  the  court  being  delivered  some  what  in  a  hurry. 

*'The  first  judgment  as  reported  is  hardly  intelligible,  and  then  there 

"  is  an  explanation  given  next  day,  it  is  however,  rather   contrary  to 

♦*  what  Lord  Kenyon  determined  in  Beckford  vs.  Close,  which  is  ci- 

*'  ted  in  that  case.     This  arose  perhaps  from  Lord  Thurlows  not  hav-  ' 

"ing,  under  the  peculiar  circumstances  in  which  he  stood,  sufficiently 

"considered  that  this  was   matter  of  the  law  of  a  Court  of  Equity. 

"  Lord  Kenyon  held  that  a  demurrer  to  a  bill,  because  it  did  not  show 

"  a  good  title  to  redemption  within  twenty  years,  was  a  good  demur- 

"  rer.     Why  ?  because  it  was  a  rule  of  the  court  that  no  redemption 

"  should   be  allowed   after   twenty  years,  and  therefore   the  party 

"  should  be  put  to  bring  his  case  within  that  rule.    Lord  Thurlows  opin- 

♦♦  ion  was  given  in  a  hurry  :  and  many  cases   were  then  pending,  in 

"which  much  injury  might  have  arisen   to    the    parties  if  the  judg- 

"  ments  had  not  then   been  given  ;  but  it  seems  to  me  that  Lord  Ken- 

"  yen's  opinion  was  perfectly  tenable  on  Lord  Thurlow's  own  quali- 

"  fication  ;  that  is,  that  when  a  party  does  not    by  his  bill,  bring  him- 

"self  within  the  rule  of  the  court,  the  other  party  may  by  demurrer 

"  demand  judgment,  whether  he  ought   to  be  compelled   to  answer. 

"  If  the  case  of  the  plaintiff  as  stated  in  the  bill  will  not  entitle  him 

"  to  a  decree,  the  judgment  of  the  court  may  be  required  by   demur- 

"  rer  whether  the  defendant  ought  to  be  compelled  to  answer  the  bill  ; 

'*  that  I  take  to  be  the  matter  of  the  law  of  a  Court  of  Equity  to  be  de- 
VoL.  I.  37 


28S  CASES  IN  CHANCERY. 

First  Circuit,  u  cided  according  to  its   rules  and  principles.     However  it  is  clear 
"that  in  this  case  of  Lord  Deloraine  vs.  Brown,  Lord  Thurlow  was 

McLean 

Ba/ton  ■'  anxious  that  his  overruling  the  demurrer  should  not  be  considered  as 
"deciding  upon  the  case;  and  the  cause  never  came  on  again, 
♦'  Lord  Deloraine  being  advised  that  the  length  of  time  was  a  bar.  " 

In  the  case  of  Chalmondeley  vs.  Clinton,  11  Cond.  Eng.  C.  Rep. 
68,  it  is  held  that  where  there  has  been  an  adverse  possession  not  ac- 
counted for  by  some  disability  for  more  than  twenty  years,  a  Court 
of  Equity  ought  not  to  interfere. 

In  the  case  of  Tuttle  vs.  Willson,  1  Ohio  Rep.  26,  it  is  said,  that, 
•'it  is  indeed,  well  settled,  that  a  statute  of  limitations,  will  now  be 
*»  applied,  in  Equity  where  it  would  bar  the  claim  at  law.  1  Story^s 
"  Eq.  502  ;  2  Story's  Eq.,  735  ;  6  Peters,  66.  The  complainant 
"filed  her  petition  in  1838,  a  period  of  twenty-three  years  having 
•'elapsed  after  her  cause  of  action  arose,  and  in  our  view,  the  stat- 
"ute  is  a  bar  to  her  claim.  But  if  it  were  otherwise,  the  staleness 
«'  of  the  demand  would  be  fatal  to  its  farther  prosecution,  and  inde- 
*•  pendentof  the  act  of  limitation,  affords  a  complete  defence.  Where 
'"  rights  are  unreasonably  neglected,  the  presumption  is  legitimate,  of 
"  an  intention  to  abandon  them.  *'Nothing,"  says  Lord  Camden  in 
"Smith  vs.  Clay,  3  Brown's,  Ch.  Rep.,  640,  "can  call  forth  this 
'*  court  into  activity,  but  conscience,  good  faith  and  reasonable  dili- 
^''  gence  :  where  these  are  wanting  the  court  is  passive,  and  doesnoth" 
'♦  ing.  Laches  and  neglect  are  always  discountenanced,  and  there- 
"  fore,  from  the  beginning  of  this  jurisdiction,  there  was  always  a 
•'  limitation  of  suit  in  this  court. 

"This  language  of  Lord  Camden  is  cited  with  approbation  by  the 
•'  Supreme  Court  of  the  United  Stales,  9  Peters,  416.  In  7  Ohio, 
•'  Rep.  62,  the  same  principle  is  also  recognized  by  this  court.  " 

Demurrers  have  been  uniformly  allowed  to  bills  to  redeem  after  the 
lapse  of  20  years. 

In  the  case  of  Lord  Annesley  vs.  Hoveden,  before  mentioned,  Lord 
Reddesdale  says  : 

"  This  brings  me  to  consider  the  case  finally  in    another   point  of 
♦  view,  supposing  the  plaintiff  might  have  had   relief  on  the   ground 
,«of  fraud,  if  he  had  pursued  his  title  with  due  diligence,  the  answer 
•♦  is,  it  appears  that  the  alleged  fraud  was  discovered  by  the  party  at 


CASES  IN  CHANCERY.  289 

"  least  so  long  ago,  that  in  1735  a  bill  was  filed,  imputing   fraud,  and  Fim  circuit. 

♦'impeaching  the  transaction  on  the  same  ground.     Therefore,  the    McLean 

"  position  that  fraud,  is  not  within   the   statute,  because  it  is  a  secret    Bmon. 

«  thin"-,  which  cannot  be  discovered,  is  not  applicable   to  this   case  ; 

"  for  the  fraud  imputed  in  this  case  is  represented  in  the  bill  of  1735; 

«  that  is,  it  is   there  stated  that   the  release  was  a  release  which    the 

"  party  conceived  he  had  a  right  to  impeach,  on  the  ground  of  fraud, 

*'and  for  that  purpose  to  obtain  from  the  opposite   party  a   discovery 

"of  all  the  facts  and  circumstances  demonstrating  the  fraud.     This 

"  was  known  to  the  person  claiming  in  1735.     Therefore,  whatever 

♦'  right  of  action  might  have  accrued  on  discovering  any    particulars 

*'of  the  fraud  different  from  what  were  apparent  in  1726,  must  beta- 

««ken  to  have  accrued  in  1735  ;  but  was  not  pursued  in  1794,  a  peri- 

«•  od  of  near  sixty  years  after  the  first  bill  filed.     1  hold  it  utterly  im- 

«•  possible  for  the  court  to  act   in   such   a  case.     A  Court  of  Equity 

«»  is  not  to  impeach  a  transaction  on  the  ground   of  fraud,   where  the 

«« fact  of  the  alleged  fraud,  was  within    the  knowledge  of  the    party 

»« sixty  years  before.    On  the  contrary,  I  think  the  rule  has  been  so 

*«  laid  down,  that  every  right  of  action  in  equity  that  accrues  to   the 

"party,  whatever  it  may  be,  must  be  acted  upon  at  the  utmost  within 

•»  twenty  years. " 

That  the  presumption  arising  from  lapse  of  time,  may  be  taken  ad- 
vantage of  upon  demurrer,  is  settled  also  in  the  case  of  Livingston  vs 
Livingston,  4  J.  C.  R.  299;  there  Chancellor  Kent  says  :  "  The  differ- 
•=  ence  between  this  case  and  the  one  decided  yesterday,  is  very  ma- 
''  terial  ;  here  is  a  demurrer  to  the  whole  bill,  and  the  great  lapse  of 
"time  taken  in  support  of  it,  whereas  in  the  other  case  the  delen- 
"  dant,  by  his  answer  adverted  to  the  covenants  to  pay  and  put  his  de- 
"  fence  on  counterclaims."  And  effect  was  given  to  this  defence  un- 
der the  demurrer.  The  bar  from  lapse  of  time  is  a  conclusion  from 
acquiescence,  an  inference  from  facts  ;  which  need  not  be  set  up  by 
demurrer,  answer  or  plea.     1   Baldwin,  413. 

Where  there  are  such  conflicting  authorities,  I  feel  myself  at  liher- 
ty  to  adopt  the  rule  that  appears  to  me  the  most  reasonable  and  con- 
venient. What  is  the  case  now  presented  to  the  court  1  Here  has 
passed  by  a  period  of  upwards  of  twenty-three  years.  No  disability 
or  excuse  for  this  delay  pretended  ;  no  new  discovery  of  fraud  sug- 
gested. 


290  CASES  IN  CHANCERY. 

Firstcijruit.      The  parties  lie  by,  until  as  appears  from  the  bill,  Smart,  the  party 
''^M*^^^  charered  with    having  committed    the   fraud,    is  dead.       Campbell, 

McLean  O  o 

Banon.  his  grantee,  is  also  dead.  No  one  is  left  to  answer  these  charges.  If 
the  lapse  of  time  ought  to  bar  this  stale  claim,  I  see  no  reason  or  pro- 
priety in  compelling  these  parties  further  to  pursue  this  litigation.  If 
any  disabilities  existed,  it  would  have  been  easy  to  have  stated  them. 
If  fraud  has  been  recently  discovered,  it  should  have  been  so  alleged. 

And  this  allegation  not  having  been  made,  the  case  cannot  be  aided 
by  proof,  for  the  proof  to  be  admissible  must  be  founded  on  some  al- 
legations in  the   bill  and  answer.     1  LcLeari's  Rep.,  489. 

A  Court  of  Equity  will  lend  its  aid  to  detect  and  redress  a  fraud, 
notwithstanding  the  lapse  of  time,  but  when  the  fraud  is  discovered, 
the  parties  must  act  upon  that  discovery  within  a  reasonable  time. 
The  party  seeking  redress  should  not  wait  for  a  period  of  between 
twenty-three  and  twenty-four  years,  until  all  those  who  were  cogni- 
zant of  the  transaction  shall  have  paid  the  debt  of  nature,  and  no  one 
is  left  to  deny  or  explain  the  allegations,  without  giving  any  excuse 
for  this  delay. 

Demurrer  allowed. 


CASES  IN  CHANCERY.  291 


William  Brown  vs.  Solomon  Gardner  and  others. 

The  jurisdiction  of  this  court  to  interfere  and  restrain  public  officers  who  arc  acting  illegally  First  Circuit 

to  tlic  manifest  injury  of  others  is  well  settled ;  but  the  ground  on  which  the   court  interferes  /^^y^-^^F^ 

in  such  cases  is,  to  prevent  great  or  irreparable  injury.  Brown 

v$ 
Upon  a  bill  filed  to  restrain  the  Commissioners  of  Highways  from  opening  a  road  through   an  Gardn.er. 

orchard  of  mire  than  four  years  growth,  und  the  gardens  of  the  complainant,  and  after  the 
injunction  was  issued,  but  before  it  was  served ,  or  tile  defendants  had  had  notice  of  the  issu- 
ing of  the  injunction  the  road  was  opened  and  ilie  answer  denied  that  the  road  passed  through 
the  orchard  or  gardens  of  complainant,  and  where  from  the  evidence,  it  was  doubtful  wheth- 
er the  road  passed  through  an  orchard  of  the  growth  of  four  years  and  the  injury  was  slight, 
the  Court  of  Chancery  refused  to  retain  the  suite,  clos  up  the  road  which  had  been  laid  out, 
made  and  fenced,  and  also  refused  to  award  an  issue  quantum  damnificalus. 

It  is  competent  for  this  court  wliere  it  has  acquired  jurisdiction  for  the  purpose  of  granting  an 
injunction  to  retain  the  suit  lor  the  purpose  of  giving  damages  to  the  complainant ;  but  whe- 
ther this  court  will  do  so  or  not  depends  upon  tiie  circumstances  of  the  case. 

Bill  filed  March  5,  A.  D.  1839,  for  an  injunction  to  restrain  the  de- 
fendants from  laying  out  and  working  a  highway. 

The  bill  states  that  the  complainant  is  owner  and  possessed  of  cer- 
tain messuages  or  farms  in  the  town  of  Cottrelville,  county  of  St. 
Clair — that  he  has  improved  and  cultivated  said  farms  for  many  years 
past — that  he  has  a  garden  on  one  of  said  farms  which  he  has  cultiva- 
ted for  more  than  twenty  years,  all  of  which  time  it  has  been  used  ex- 
clusively for  that  purpose.  That  he  has  a  garden  on  the  other 
of  said  farms,  which  he  has  prepared  and  cultivated  for  more  than  a 
year  past.  That  there  is  a  grove  of  maple  trees  on  one  of  the  farms  - 
which  he  has  cultivated  and  used  for  a  sugar  orchard.  That  he  has 
also  an  orchard  on  one  of  the  farms  of  more  than  the  growth  of  four 
years. 

That  in  the  month  of  August,  1838,  defendants  proceeded  to  laj- 
out  a  road  upon  and  across  complainanta  farms  and  through  said  gar- 
dens and  orchards.  That  complainant  forbid  the  laying  out  and  wor- 
king said  road,  and  denied  the  right  of  defendants  to  lay  out  or  open 
the  same. 

States  that  the  Commissioners  of  Highways  have  ordered  the  Over- 
seers of  Highways  to  cause  the  highway  so  laid  out  to  be  worked  and 
opened. 


292  CASES  IN  CHANCERY. 

Fimt Circuit.      That  in  the  month  of  February,  1839,  they  actually   commenced 
Brown    workmg  the  road  and  to  open  the  same  through  the  said  farms,  orch- 
Gar'dner.    ^n'ds  and  gardens. 

Bill  charges  that  defendants  are  not  Commissioners  of  Highways 
duly  qualified,  &o.,  and  that  they  did  not  pursue  the  course  pointed 
out  by  the  statute  in  laying  out  said  highway.  Charges  that  the  ne- 
cessity of  said  road  was  not  certified  by  twelve  respectable  freehol- 
ders sworn  by  an  officer  duly  authorized  to  administer  oaths.  Char- 
ges that  the  jury  was  not  duly  summoned,  and  drawn,  and  free  from 
all  legal  exceptions,  and  were  not  duly  sworn  by  an  officer  duly  au- 
thorized to  administer  oaths,  to  assess  complainants  damages,  and  that 
the  jury  assessed  no  damages  to  complainant.  Charges  that  the  road 
would  be  more  than  two  hundred  dollars  damages  to  complainant,  if 
worked  through  his  orchards,  gardens,  &c. 

That  the  damages  in  destroying  his  shade  trees,  &;c.,  would  be  irre- 
parable. 

Prays  for  injunction  and  that  defendants  pay  damages  and  costs  of 
complainant. 

The  answer  states  that  defendants  were  duly  elected  and  qualified 
as  Commissioners  of  Highways  for  the  said  township  of  Cottrelville, 
that  defendant  Ward  was  also  County  Surveyor,  that  they  had  full 
and  lawful  authority  to  lay  out  said  road.  Admits  complainant  is 
possessed  and  owner  of  the  messuages  and  farms,  and  that  he  has 
cultivated  the  same  for  many  years  past.  States  that  in  consequence 
of  the  old  road  becoming  impassable,  owing  to  its  having  been  wash- 
ed away  by  the  water,  it  became  necessary  to  lay  out  and  establish  a 
new  road  in  said  town.  That  the  old  road  was  duly  and  legally  dis- 
continued, and  application  having  been  made  by  12  respectable  free 
holders  of  said  township,  certifying  upon  oath  that  such  road  was  neces- 
sary and  defendants  as  Commissioners  ordered  and  directed  a  new  road 
to  be  opened,  laid  out  and  established,  which  necessarily  crossed  the 
farms  of  complainant,  in  the  bill  alluded  to.  That  the  order  was 
made  and  entered  on  or  about  the  twenty-first  day  of  August,  1838. 

That  in  November,  defendants  gave  complainant  notice  to  remove 
his  fences  &;c.,  which  he  neglected  to  do,  that  defendants  then  direc- 
ted the  fences  to  be  removed  and  road  to  be  opened.  That  before  do- 
ing so  they  applied  to  David  Cottrell  Esq.,  a  Justice  of  the  Peace  of 


CASES  IN  CHANCERY.  298 

said  township,  to  obtain  a  jury  to  assess  plaintifTs  damages.     That  the  First  circuit 
Justice  issued  his  warrant  to  a  Constable  of  the  township  of  Clay  to     Brown 
summon  nine  jurors  in  a  township  other  than   Cottrelville  to   assess  Garduer. 
complainants  damages — that  complainant  had  due  notice  of  the   time 
and  place,  and  attended,  and  on  or  about  the  third  day  of  March,  1839, 
the  said  justice  drew  by  lor  six  jurors;  that  they  were  duly  sworn  to 
assess  the  damages,  and  after  having  viewed  and  examined  the  prem- 
ises they  returned  a  verdict  that  complainant  was  entitled  to  no  dama- 
ges, which  verdict  was  certified  by  the  Justice  and  delivered  by  him  to 
defendants. 

Answer  states  that  after  the  verdict  of  the  jury,  defendants  ofTered 
complainant  twenty-five  dollars  for  his  damages,  which  he  refused — 
that  complainant  appeared  before  the  jury  and  claimed  a  much  higher 
sum. 

Denies  that  the  new  road  goes  through  any  orchard  on  the  premis- 
es of  complainant  of  the  growth  of  four  years,  or  through  any  gar. 
den  that  has  been  cultivated  four  years  or  more. 

Admits  that  a  small  portion  on  front  of  one  of  said  farms  which 
has  never  been  under  any  inclosure,  but  forms  a  part  of  a  large  field 
on  the  site  of  said  road,  the  complainant  or  his  tenants  might,  on  two 
or  three  occasions  and  not  oftener,  as  defendants  have  been  informed 
&c.,  have  raised  a  few  potatoes  and  other  vegitables  &c. 

Denies  that  it  was  then  or  ever  has  been  exclusively  occupied  as  a 
garden. 

Denies  that  there  is  any  orchard  or  garden  on  the  site  of  the  new 
road,  with  the  exception  of  the  stubs  of  four  or  five  young  trees  of 
about  one  inch  in  thickness — avers  that  the  said  trees  are  not  of  the 
growth  of  four  years. 

Answer  admits  that  the  new  road  passes  through  a  grove  of  maple 
trees  on  one  of  said  farms. 

Admits  that  complainant  forbid  defendants,  and  denied  their  right 
to  lay  out  said  road. 

States  that  before  the  service  of  the  injunction  or  any  knowledge 
thereof,  the  road  had  been  opened — that  the  only  damage  done  was 
the  cutting  down  of  several  of  the  maple  trees — that  the  stubs  of  ap- 
ple trees  might  be  easily  removed,  &;c. 

Harrington  and  Emmons,  for  complainant. 


294  CASES  IN  CHANCERY. 

Firstcircuit.      First.  The  Court  of  Chancery  has  undoubted  jurisdiction  where 

Brown    public  officers  are  proceeding  illegally  and  improperly  under  a  claim 

Ganiiicr.    of  right  to  injure  the  property  of  individuals,  to  restrain    them  from 

proceeding  by  injunclion.      Cooper  vs.  Alden,  Ante.  96  ;  Devauxvs. 

city  of  Detroit,  Ante  98  ;  6  Paige  83  ;  Id.  262. 

The  statute  (Laws  of  1833,  page  103,  sec.  16)  provides  that  it  shall 
not  be  lawful  for  the  Commissioners  of  Highways  to  layout  any  road 
through  any  orchard  or  garden  without  the  consent  of  the  owner 
thereof,  if  such  orchard  shall  be  of  the  growth  of  four  years,  or  such 
garden  shall  have  been  cultivated  as  such  at  least  four  years  before 
such  highway  or  road  shall  be  laid  out. 

The  Revised  Statutes  (page  121  sec.  4)  contains  the  same  provis- 
ion. 

The  bill  states  that  the  Commissioners  of  Highways  of  the  town  of 
Cottrelville  were  proceeding  to  lay  out  and  open  a  road  or  highway 
through  complainants  garden  which  he  had  cultivated  as  such  for 
more  than  twenty  years,  all  of  which  time  it  had  been  used  exclusive^ 
ly  for  that  purpose  ;  also  through  an  orchard  of  more  than  four  years 
growth. 

This  allegation  clearly  gave  the  Court  of  Chancery  jurisdiction, 
and  it  properly  exercised  that  jurisdiction  in  granting  the  injunction 
to  restrain  the  opening  of  the  road  through  complainants  orchards 
and  gardens. 

Second.  Where  the  jurisdiction  of  the  Court  of  Chancery  has  once 
rightl"u!ly  attached  and  the  equity  which  gave  the  jurisdiction  has  sub- 
sequently been  defeated  or  destroyed,  the  court  will  retain  its  juris- 
diction and  do  justice  in  the  premises,  although  there  may  be  an  ade- 
quate remedy  at  law.  1  Johns  Ck.  Rep.  131;  2  Story's  Eq.  104  to 
109  ;   1  Fonhl.  Eq.  "  59  "  note  (%)  and  authorities  tlfre  cited. 

Third.  The  jurisdiction  of  this  court  in  the  premises  is  conceded  ; 
and  the  complainant  has  waived  no   right  to  ask  relief  in  this  court. 

Ist.  The  objection  to  the  jurisdiction  of  the  court,  that  the  com- 
plainant has  an  adequate  remedy  at  law  should  be  made  by  plea  or 
demurrer  or  should  be  distinctly  stated  in  the  answer.  Wiswall  vs. 
Hall,  3  Paige  313.  No  such  objection  is  made  by  the  answer  in  this 
case.     ((See  also  4  Paige  399. 


CASES  IX  CriANCiniV.  205 

Secoiul.  The  complainant  has  waived  no  right  to  ask  relief  in  this '''"'^'"■"" 
court.  ^-^^^s-^^^ 

The  bill  states  that  complainant  "  never  gave  his  assent  to  have  a  "„","" 
"  public  or  private  road  run  across  his  said  farms  ;  but  on  the  contra- 
"  ry  that  he  refused  his  assent  and  denied  the  right  of  the  said  Com" 
"missioners,  and  of  any  other  persons  to  run,  layout,  or  work  a  road 
"across  his  farms  aforesaid  ;  and  when  he  learned  from  the  persons 
"  calling  themselves  Commissioners  of  Flighways,  that  they  werede- 
"  termined  to  run  and  lay  out  a  public  road  through  and  across  iiis 
"  farms  aforesaid  and  through  the  gardens  and  orchards  on  his  said 
"farms  as  aforesaid,  tliat  he  remonstrated  against  such  a  course  of 
♦'  proceedings,  but  all   to  no  ctiect,  iScc.  " 

That  they  "  proceeded  to  survey  and  lay  out  a  road  or  highway 
"  through  and  upon  the  farms  of  the  complainant  as  aforesaid,  and 
"  through  the  gardens  and  orchards  of  complainant  on  said  farms, 
'•notwithstanding  the  continued  remonstrances  of  complainant." 

T/tc  answer  admits  that  defendants  went  "upon  the  premises  of 
"complainant,  then  being  in  his  possession,  and  then  informed  him 
"that  they  were  going  to  run  a  road  across  his  said  farms,  to  which 
"  they  asked  his  assent,  which  he  then  and  ever  since  hath  withheld  ; 
"and  they  further  admit  that  said  complainant  denied  their  right  as 
"such  Commissioners,  or  the  right  of  any  other  person  to  run  or  lay 
"out  or  work  a  road  across  his  farms  ;  and  tht-y  also  admit  thatcom- 
*'  plainant  after  being  advised  of  their  determination  to  lay  out  and 
"establish  said  road  as  alleged  in  said  bill,  remonstrated  against 
''such proceeding,^'  which  remonstrance  they  were  compelled  from 
a  sense  of  duty  to  disregard,  (fee. 

Answer  further  admits  that  defendants  "  proceeded  to,  and  did  sur- 
"vey  and  layout  said  public  road  or  highway,  through  and  across 
"said  complainants  farms,  notwithstanding  said  remonstrance;  and 
'•  that  said  road  was  opened  and  worked  through.  And  they  further 
"admit  that  the  complainant  may  have  requested  these  defendants 
"and  Overseers  of  Iligliways  to  desist  from  laying  out,  establishing 
"or  working  said  road.  '*' 

Here  there  is  an  express  averment  in  the  hill  which  is  admitted  by 
the  answer  ihat  the  complainant  never  gave  his  assent,  but  always  re- 
monstrated against  the  laying  out  and  working  of  the  road,  and  de- 
nied the  right  of  the  defendants  so  to  do. 

Vol.  I.  38 


296  CASES  IN  CHANCERY. 

First  Circuit      'f^e  Statute  is  express  (Laics  of  1833,  page  168,  sec.  16  ;  R.  S. 
Brown     ^''^^^  *^^'  ^0  ^^^^^  ^^  shall  rot  be  lawful  to  lay  out   any  road   through 
Gar^dner.    any  orchard  or  garden  of  the  growth  or  cultivation   of  four   years, 
without  the  consent  of  the  owner  thereof. 

Did  the  appearance  of  the  complainant  before  the  jary  when  noti- 
fied by  the  Commissioners  to  appear,  waive  by  implication  a  right, 
which  he  positively,  expressly,  and  at  all  times  insisted  upon,  as  ad- 
mitted by  the  answer  ? 

The  Commissioners  are  the  sole  judges  of  the  necessity  or  propri- 
ety of  laying  out  the  road.  The  province  of  the  jury  isto  judge  on- 
ly of  the  amount  of  damages.  Suppose  the  complainant  had  objec- 
ted to  their  assessing  the  damages,  such  objection  would  have  availed 
nothing,  for  they  had  no  power  to  judge  of  the  necessity  or  propriety 
of  laying  out  the  road.  "The  jury  cannot  lawfully  decide  that  there 
*•  shall  be  no  road  when  the  Commissioners  have  determined  there 
"shall  be  one.     11  Pick.  Rep.  2fi9. 

It  was  also  held  in  the  case  Hinckley  et  al  15  Pick^A^l,  that  '*the 
appearance  of  the  town,  before  the  jury  ordered  by  the  Cominission- 
ers  to  assess  damages  was  not  a  waiver  by  the  town,  of  the  objection 
that  they  had  not  notice.  And  the  reason  given  in  that  case  is  that 
the  jury  could  not  have  acted  upon  such  objection. 

Fourth,  If  the  nature  of  the  defence  is  equitable  though  there  has 
been  a  full  trial  at  law.  2  Barbour  and  Harrington's,  dig.  113/  1  Cook 
242  ;  1  ^.A'.  Marshall,  388;  4  Randolph,  Rep.  537. 

A.  D.  Fkaser  for  defendants. 

First.  Contended  that  this  court  had  no  jurisdiction  of  the  case  ; 
that  the  statute  (R.  S.  125  sec.  30,)  gives  a  remedy  to  a  party  who 
conceives  himself  aggtieved.  by  an  appeal,  and  that  where  the  stat- 
ute provides  a  remedy  thiscourt  will  not  interfere.  And  cited  to  this 
point  1  Equity  cases  131;  7  Paige  155  ;  19  Ves.  448  ;  6  Wend.  566; 
4  Coioen  202  ;  3  Paige  573  ;  1  /(/.  114  ;   10  Wend.  174. 

II.  As  to  what  constitutes  an  orchard  within  the  meaning  of  the 
statute,  see  23  TrentZ.  360. 

III.  The  evidence  on  the  part  of  the  complainant  is  not  sufficient 
to  out  weigh  the  answer  of  the  defendants,  and   their  testimony.     It 


CASES  IN  CHANCERY.  297 

is  the  province  of  the  Chancellor  to  weigh  the  testimony  and  decide  Fi">  circuit 
upon  it.     See  1  Bailey's  Rep.  3S6;  Id.  514,    But  even  if  the  allega     urown 
tions  in  the  bill  were  well  founded,  it  is  shown  that  the  complainant    GQ^dner. 
waived  all  objections  on  that  ground  by  preferring  his  claim  for  dam- 
ages.    See  1  Cowp.  410  ;  2  ChitL  ch.  Dig.  1342  (o  1344  ;   2  Hill  ch- 
R.  7  ;  id.  416  ;  2  Bar.  Sf  Marring.  Eq.  Dig.  1-26. 

IV.  Chancery  will  not,  except  under  very  particular  circumstances, 
as'there  may  be  upon  a  bill  for  a  specific  performance  of  a  contract 
direct  an  issue  or  a  reference  to  ascertain  damages.  17  Ves.  277,  8/ 
14  Id.  128;  Fonhl.  Eq.  69  ;  2  Story's  Eq.   107,  109. 

The  cases  of  Denton  vs.  Stewart  ;  1  Cox  258,  and  Greenaioay  vs. 
Adams,  12  Ves  395,  arc  over-ruled  so  far  as  the  principles  there  laid 
down  are  reconciled  with  the  case  in  the  17  Ves.  277,  8. 

In  a  case  where  it  would  be  difficult  to  ascertain  the  injury  resul- 
ting from  the  breach  of  a  contract  or  the  sum  in  damages  by  which 
the  injury  might  be  compensated,  this  court  will  not  themselves  as- 
certain the  injury  nor  the  damages,  nor  direct  an  issue  quantum  dam, 
nijicatus.  9  Cranc/i456;  2  Story's  Eq.  104  to  109  ;  4  John.  Ch.  R. 
560;  Id.  195;  1  Coioen  755;  14  Ves.  129;  Hid. 218  ^o285;  1  Sch. 
and  Lefroyl'o;  b  Johns.  Ch.  R.  194,  105;  3  iVienv.  248;  4:  Johns,  ch. 
R.  560. 

The  Chancellor. — The  bill  in  this  case  was  filed  to  restrain  the 
defendants,  Commissioners  of  Highways  for  the  township  of  Cottrel- 
ville,  from  opening  a  highway  through  premises,  a  part  of  which  the 
complainant  alleges  had  been  used  for  a  garden  for  some  twenty  years 
and  a  part  as  an  orchard  of  more  than  four  years  growth. 

The  bill  was  filed  under  the  provisions  of  the  statute  inhibiting  any 
road  from  being  laid  out  without  the  consent  of  the  owner  through 
any  orchard  of  more  than  four  years  growth,  or  garden  which  had 
been  occupied  as  such  more  than  four  years  before  the  laying  out  of 
such  road.  , 

The  answer  of  the  defendants  inhabitants  and  officers  of  said  town 
expressly  denies  that  the  said  road  was  laid  out  or  opened  through 
any  such  garden  or  orchard.  Proofs  on  both  sides  have  been 
taken. 

It  is  si  ngular  that  in  relation  to  a  matter  of  fact  which  from  its  very 


298  CASES  IN  CHANCERY. 

Firstcircuit  nature  we  would  suppose  must  be  apparent  one  way  or  the  other,  we 
n,„,.-,.     should  meet  with  such  direct  contradiction  as  is  found  in  the  bill  and 
Gardner,    the  answer. 

The  proof  however,  to  some  extent,  but  not  altogether,  explains  it. 
[  shall  not  undertake  to  go  through  with  the  entire  mass  of  testimo- 
ny taken  in  this  cause.-  With  regard  to  what  is  called  in  the  evidence 
the  lower  farm,  it  does  not  seem  to  me  that  the  road  can  be  consider- 
ed as  passing  through  an  orchard  of  more  than  four  years  growth 
within  the  meaning  of  the  act. 

The  statute  must  receive  a  reasonable  construction.  The  object  of 
it  was  to  protect  orcliards  from  being  cut  up  and  severed  without  the 
consent  of  the  owner.  But  one  small  tree  and  one  broken  stump  and 
those  as  it  would  seem  of  less  than  four  years  growth  when  the  road 
Was  laid  out,  and  detached  from  the  trees  in  an  orchard  adjoining,  were 
included  in  the  road. 

There  is  soma  evidence  of  an  intention  to  continue  the  appropria- 
tion of  this  ground  for  the  purpose  of  an  orchard.  But  wheVe  the 
fact  is  one  of  so  doubtful  a  character  and  the  injury  so  slight,  it  does 
not  seem  to  me  that  the  court  for  this  cause  is  authorized  to  retain  this 
Buitj  and  close  up  this  road,  which  has  been  laid  out,  made  and  fenced, 
or  award  an  issue  quantum  damnijicatus. 

As  to  the  garden  on  the  upper  farm  there  is  somewhat  more  diffi- 
culty.    Many  respectable  witnesses  residing  in  the  immediate  vicini- 
ty say  that  the  grounds  in  question  have  not  been   used  for  a  garden. 
Others  swear  positively  that  they  have  been  so  used  for  several  years. 
I  am  inclined  to  think,  after  a  careful  examination  of  the  testimony, 
that  the  new  road  does  encroach  some  thirty  feet  in  the  widest  place 
upon  what  the  last  witnesses  mean  when  they  speak  of  a  garden. 
Some  culinary  vegitables  have  been  raised  on  different  portions  of 
this  piece  of  ground  for  many  years;  whether  it  has  been  so  use  dev- 
ery  year  is  very  doubtful.     The  same  portions  of  the  ground  do  not 
seem  to  have  been  occupied  for  these  purposes  each  year.     And  from 
the  testimony  it  would  seem  not  to  have  been  very   carefully  cultiva- 
ted, or  to  have  produced  much.     And  this  explains  the  testimony  of 
those  witnesses  residing  in  the  immediate  neighborhood,  who  testify 
that  the  road  does  not  pass  through  any  garden.     From  the  manner 
in  which  this  ground  has  been  used,  the  manner  in  M'hich  it  was  found, 


CASES  IN  CHANCERY.  299 

or  rather  from  the  fact  that  during  a  portion  of  the  time  it   lias  been  First  Circnii 
partially  without  a  fence  ;  it  is  doubtful  whether   it    can  be    called  a     urown 
garden  within  the  meaning  of  the  act.     It  would  appear  that  it  was  not    Gardner, 
regularly  enclosed,  and  set  apart  as  a  garden.     But  admitting  that  by 
possibility,  it  may  be  regarded  as  a  garden  within  the  meaning  of  the 
act,  does   this   present  such    a  case  as  calls  upon  this   court  to  inter- 
fere, when  if  the  complainant  is  entitled  to  any  remedy,  the  courts  of 
law  can  afford  the  same  relief  which  is  now  sought  here?     The  inju- 
ry, if  any,  is  very  slight.     Some  of  tlie  witnesses  say  that  tiic  com- 
plainant has  sustained  no  injury;  all  place  thedamages  at  a  small  sum. 
The  jury  who  were  empannelled  to  assess  the  damages  found  that  the 
complainant  would  sustain  no  injury. 

The  jurisdiction  of  this  court  to  interfere,  and  restrain  public  offi-     i 
cers  who  are  acting  illegally  to  the  manifest  injury  of  others,  is  well 
settled.     But  the  grounds  on  which  this  court  interferes  in  such  cases, 
is  to  prevent  great  or  irrejwirable  injury.     Such  is  not  the  case  here. 
The  road  was  laid  out  and  opened  before   the  service   of  the  injunc- 
tion.    There  is  nothing  in  the  case  from  which  to  infer  that  the  Com- 
missioners acted  in  bad  faith  or  intended  any  wanton  violation  of  the 
rights  of  the  complainant.     The  indispensable  necessity  for  a  change 
in  the  locality  of  this  road  is  established.     I  find  no  evidence  of  un- 
fairness or  partiality  in  the  summoning;  or  the    conduct  of  the  jury 
summoned  to  assess  the  damages.     But  it  is  argued  that  as  the  court 
has  acquired  jurisdiction  for  the  purpose  of  granting  the    injunction, 
it  should  retain  it  for  the  purpose  of  giving  damages  to  the    complain- 
ant.    It  would  be  competent  for  this  court  so  to  do.     It  is  sometimes 
done.     In  a  clear  case  of  gross  and  wanton  injury  by  public  officers, 
under  color  of  their  office,  if  the  purposes  of  justice  would  be  better 
subserved   than  by  sending   the   complainant  to  a  court   of  law,  I 
should  be  disposed  to  do  so.     But  in  a  case  like  this,  when    the   offi- 
cers seem  to  have  acted  in  good  faith,  when  it  is  doubtful  whether  any 
trespass^  has  been  committed,  and  when,  if  it  should  be  so  found,  the 
damages,  if  any,  must  be  very  trifling,  and  a  court  of  law  can  atford 
the  complainant  an  adequate  remedy,  1  do  not  think  this  court  is  call- 
ed upon  to  keep  these  defendants  here,  and  send  an  issue  to  the  coun- 
ty of  St.  Clair,  first  to  try  the  fact  whether  the  land  in  question  was 
a  garden  or  not,  and  then  if  so  found,  to  assess  the  damages. 


300  CASES  IN  CHANCERY. 

First  Circuit      The  Convenient  administration  of  justice  will  be  belter  subserved 
Brown     ^7  leaving  the  complainant  to  his  suit  at  law  in  the  county  where  the 
Gardner.   lands  are  situated  and  where  the  witnesses  reside. 
Bill  dismissed. 


CASES  IN  CHANCERY.  301 


Whitney  Jones  vs.  Wing  and  Dean. 

Where  an  allegntion  is  made  in  ilie  bill  wiili  divers  circumstances,  the  defendant  should  not  hy  Third  Cir- 
his  answer  deny  ihc  allcgiiiion  liierally  as  laid  in  tlie  bill,  but  should  answer  the  point  of  sul)-  ^^—.^^^ 
stance  positively  and  certainly.  Jones 

W.  and  D.  being  merchants,  J.  entrusted  them  with  goods  to  sell  on  his  account.  W.  and  D.  -^ving  and 
afterwards  proposed  to  purchase  the  goods  of  J.  and  convey  certain  lands  in  payment  there-  Dean, 
for.  Six  hundred  and  fifty  acres  of  which  they  represented  to  be  good  pine  lands  averaging 
forty  pine  trees  to  the  acre  from  two  and  a  half  to  five  feet  through,  and  that  there  was  a  good 
mill  site  thereon,  with  six  to  eisiht  feet  ftill  of  water.  J.  sold  the  goods  to  W.  and  D.,  and 
took  a  conveyance  of  the  land^,  relying  upon  the  represenUitions  of  W.  and  D.,  and  without 
ever  having  seen  the  same,  and  it  turned  out  that  the  representations  were  not  true,  and  that 
Jiicre  was  pine  timber  upon  but  about  one  fourth  of  tlie  land,  and  upon  that  not  much  more 
than  one  half  the  quantity  represented  upon  a  bill  filed  for  that  purpose.  This  court  declared 
the  contract  rescinded  and  decreed  a  re-delivery  of  the  remaining  portion  of  the  goods,  and 
awarded  to  J. ,  the  complainant,  the  re-payment  to  him  of  the  value  of  the  goods  which  had 
been  sold  by  \V.  and  U.,  and  that  uiiiil  the  payment  should  be  made,  J.  should  retain  alien 
upon  the  lands  as  a  security  for  the  amouut  due  him  for  the  goods  which  have  been  sold. 

Bill  to  rescind  a  contract  on  the  ground  of  fraud.  The  statament 
of  the  case  is  sufficiently  given  in  the  opinion  of  the  court. 

Pkatt  and  Lee,  for  complainant. 

The  conduct  of  the  parties  shows  the  merits  of  the  case.  The 
complainant  so  soon  as  he  saw  the  lands  told  the  witness,  Lyon,  that 
he  had  been  cheated,  and  would  have  redress,  and  immediately  on 
his  return  to  Marshall,  and  meeting  the  defendant,  Deane,  he  asser- 
ted his  rights — declared  himself  to  have  been  injured,  and  declared 
that  he  should  apply  to  the  laws  for  redress. 

This  he  has  done,  and  what  is  the  duty  of  this  court  ? 

No  complex  questions  of  artificial  rights  at  law  arise  to  interfere 
with  the  direct  application  of  the  principles  of  equity.  The  juris- 
diction of  the  court  is  unquestioned,  equity  will  always  take  cogni- 
zance of  fraud,  and  grant  relief  where  it  is  proven  to  exist.  The 
peculiar  and  special  power  of  the  court  is  also  properly  invoked  in 
compelling  an  account  of  the  property  received,  and  a  cancelling  of 
the  conveyance  to  the  complainant. 

The  fraud  in  this  case  was  in  a  material   point,   the  complainant 


302  CASES  IN  CHANCERY. 


Third  Cir-  trusted  to  it  and  was  mislead.     He  is  therefore  entitled  to  relief- — 

cuit. 

N..^-v^w  Eva7is  vs.  BickneU,see  6   Fes.  173,  1822,  1  Bro.  Ch.  R.  546;  Ja- 
^IT     cob  Rep.  178;  1  Fonhl  Eq.  B.  \,  Ch.  228;  1  Story  Eq.  201. 

^^i)"eai!!"'*  Whetlier  the  defendants  knew  their  representations  to  be  false,  or 
made  the  assertions  without  knowing  whether  they  were  true  or  false, 
is  immaterial,  for  the  affirmation  of  what  one  does  not  know  or  be- 
lieve to  be  true,  is  equally  in  morals  and  in  law  as  unjustifiable  as 
the  affirmation  of  what  he  knows  to  be  positively  false.  Aenslee  vs. 
Modlecott,  9  Ves,  21;  Graves  vs.  White  Freem,  R.  57  ;  Pearson  vs 
Morgan,  2  Bro.  Ch.  R,  389.  And  even  if  the  party  innocently  mis- 
represents a  fact  by  mistake  it  is  equally  conclusive  ;  for  it  operates 
ns  a  surprise  and  imposition  on  the  other  party.  2  Bro.  Ch.  R.  369, 
Burrows  vs.  Loche,  10  Ves.  475  ;  1  Ves.  and  B.  355  ;  3  Ves.   and 

B.  111. 

Fraud  and  damage  coupled  together  will  entitle  the  injured  party 
to  relief  in  any   cnirt    of  justice.     7  John  Ch.  Rep.  201. 

The  consideration  of  the  deed  is  $5,500;  the  complainant  is  en- 
titled to  a  decree  foi  this,  to  have  such  of  the  goods  as  are  on  hand 
and  unsold  restored  to  him — their  value  to  be  ascertained  and  to  have 
a  personal  decree  against  the  defendants  for  the  remainder,  and  until 
that  be  paid  to  retain  his  lien  on  the  bond,  and  if  the  balance  be  not 
paid  to  him,  that  he  may  sell  the  land  and  have  execution  against  the 
defendants  for  the  deficiency  if  any. 

Woodruff,  for  defendants. 

Lord  Hardwicke  thus  enumerated  the  several  kinds  of  frauds  re- 
lievable  in  a  Court  of  Equity. 

First.  Fraud  which  is  dolus  malus  may  be  actually  arising  from 
facts  and  circumstances. 

Second,  It  may  be  apparent  from  the  intrinsic  nature  and  subject 
of  the  bargain  itself,  such  as  no  man  in  his  senses  and  not  under  de- 
lusion would  make  on  the  one  hand  and  as  no  honest  and  fair  man 
would  accept  on  the  other. 

Third.  F'raud  vvhich  may  be  presumed  from  the  circumstanceis  and 
condition  of  the  parties  contracting,  and  this  goes  further  than  the  rule 
of  law,  which  is,  that  it  must  be  proved  not   presumed,  but  is  estab- 


CASES  IN  CHANCERY.  303 


lished  in  the  Court  of  Chancery  to  prevent  taking  advantage  of  the   rhini  cir- 

weakness  or  necessity  ot  another.  ^^'■v^^ 

FourLli.  Fraud  which  may  be  collected  and  inferred  in  the  consid-        vs\ 

i^        n  c   -n       •'       e-  Willi;  und 

eration  of  a  Court  of  Equity  from  the  nature  and  circumstances  of     iJcau. 
the  transaction  as  being  a  deceit   on  other  persons   not   parties   to 
the  fraudulent  transaction. 

Fifth.  Fraud  in  what  are  called  catching  bargains  with  heirs,  re- 
versioners or  expectants  in  the  life  of  the  parents.  2  Ves.  155  cited^ 
1  Story's  Equity  198. 

If  these  distinctions  are  well  made,  it  cannot  be  contended  that 
the  present  case  is  sustainable  in  any  other  point  of  view  than  that 
of  fraud  or  dolus  vialus. 

The  rule  of  the  civil  law — dolum  ex  indiciis  perspicuis  prohari 
convenit.  Cod.  Lib.  2  Til.  21,  l.  G,  cited  1  Story^s  Eq.  199,  is  thus 
translated  and  adopted  in  our  own  jurisprudence.  "  Fraud  shall  not 
be  presumed  in  law  or  equity  without  manifest  proof."  3  Cases  in 
Chan.  85,  110,  Comyn  Dig.  Tit.  Chancery. 

Circumstances  of  mere  suspicion  without  leading  to  certain  results 
will  not  in  either  court  be  deemed  a  sufficient  ground  to  establish 
fraud.     1  Story  Eq.  200.  and  cases  there  cited. 

If  the  representations  of  the  defendants  were  not  fraudulent,  then 
the  bill  is  not  sustainable.  If  what  the  defendants  said  is  consistent 
with  a  mistaken  judgment  as  to  the  quantity  of  pine  and  a  water 
power,  and  a  fraudulent  intent  and  act  is  not  clearly  proved,  the  com- 
plaint is  not  made  out,  and  no  rule  of  equity  can  be  shown  which 
will  relieve  the  complainant  from  making  out  a  clear  case  of  posi- 
tive fraud  in  this  case.  Notwithstanding  what  is  said  in  Story  1  Eq. 
p.  202,  citing  Burrows  vs.  Locke,  10  Ves.  475,  De  Mannville  vs. 
Compton  1  Ves.  ami  B.  Sdb  Exparte  Law  3  Ves.  and  B.  Ill,  S{c. 
it  will  be  seen  by  reference  to  those  cases  that  the  above  distinctions 
uf  Lord  liardwicke  are  not  gainsaid,  but  are  in  fact  sustained  in  the 
particular  cases. 

The  statement   must   be  of  fact   and  not  of  opinion.     1  Story's 
Eq.  20G. 

The  Ch.vncellob. — The  bill  in  this  case  charges  that  the  com- 
VoL.  I.  39 


304  CASES  IN  CHANCERY. 

Tiiirf^.cir-  plainant  (a  resident  of  New  York,)  on  the  1st  of  October,   1839, 
v^'-v"^^  had  at  Marshall,  in  this  state,  a  large  quantity  of  goods. 

vs.  That  Wing  and  Dean,  (ihe  defendants,")  were  then  merchants  at 

Wing  and  . 

Deln.  Marshall,  and  that  the  complainant  entrusted  a  part  of  the  goods  to 
them  to  be  sold  on  his  account. 

That  they  proposed  to  buy  the  goods  of  the  complainant,  and  pay  for 
them  in  lands  in  the  county  of  Clinton,  and  with  a  view  to  induce 
the  complainant  to  take  the  lands,  made  to  him  the  following  repre- 
sentations :  That  of  the  one  thousand  two  hundred  acres,  the  north- 
ern six  hundred  and  forty  acres  were  the  most  valuable  pine  lands  in 
the  slate  ;  that  they  would  average  from  seventy  to  ninety  trees  per 
acre,  and  those  from  two  and  a  half  to  five  feet  in  diameter.  That 
they  had  actual  knowledge  of  the  quality  of  the  lands  from  their 
own  examinations,  and  that  they  would  warrant  there  were  forfy  trees 
per  acre  on  the  six  hundred  and  forty  acres.  And  that'*  they  also 
staled  that  there  was  a  good  mill  site,  by  which  a  fall  of  six  or  eight 
feet  could  be  obtained  on  Maple  river. 

The  sale  was  consummated  on  the  eighteenth  of  December  ;  the 
comi)lainant  soon  after  went  to  examine  the  lands,  when  he  found  as 
is  alleged,  that  out  of  the  six  hundred  and  forty  acres  there  was  not 
more  than  one  hundred  and  fifteen  acres  of  pine  timber. 

The  complainant  returned  to  Marshall  in  the  month  of  February 
following,  and  saw  the  defendant  Dean,  to  whom  he  immediately  rep- 
resented that  he  had  been  defrauded,  and  demanded  restitution,  which 
was  refused. 

The  principal  point  in  the  case  is,  as  to  the  representations  made 
respecting  the  quality  of  the  lands. 

The  answer  of  the  defendants  admits  the  sale  of  the  goods  for  the 
consideration  stated  in  the  bill.  They  deny  that  they  represented 
the  six  hundred  and  forty  acres  as  the  most  valuable  pine  lands  in  the 
state,  and  that  they  would  average  from  seventy  to  ninety  trees  per 
acre,  and  that  they  would  warrant  there  were  forty  pine  trees  to  the 
acre,  from  two  and  a  half  to  five  feet  in  diameter  on  the  whole 
640  acres.  It  is  proper  here  to  say,  that  the  answer  in  this  respect 
is  not  entirely  satisfactory.  If  an  allegation  is  made  with  divers 
circumstances,  the  defendant  should  not  deny  it  literally  as  laid  in 


CASES  IN  CHANCERY.  305 

the  bill,  but  should  answer  the  point  of  substnnco  positively  nnd  ccr-  Tiuni  Cir- 
tainly.  •v^'V^^ 

The  defendants  in  their  answer  further  say,  that  of  the  eight  lots  "'„!,';'' 
they  stated  that  four  certainly  had  pine  timber  on  them,  on  another  jjcu"" 
,.hey  thought  there  was  pine,  but  were  not  sure  ;  that  they  had  exa- 
mined five,  perhaps  six ,  of  the  lots  the  summer  before,  but  had  not 
examined  the  other  two.  That  in  December  1839,  they  told  the  com. 
plainant  in  the  presence  of  Samuel  Camp  and  R.  B.  White,  that  as 
they  thought  there  were  40  pine  trees  on  an  acre  on  the  land  where 
the  j)ine  grew.  There  are  other  allegations  in  the  bill,  which  are 
totally  denied.  There  is  a  great  discrepancy  between  the  bill  and 
the  answer,  and  we  are  compelled  to  resort  to  the  testimony,  to  as- 
certain the  character  of  the  representations  concerning  the  land 
which  is  the  principal  subject  of  controversy. 

The  answer  of  the  defendants  refers  to  statements  rnadc  in  the 
presence  of  White  and  Samuel  Camp.     Mr.  Camp  says  "that  Mr. 
Dean  stated  that,  that  land   of  their's  up   north  would  average  from 
sixty  to  ninety  pine  trees  per  acre,  from  two  and  a  half  to  five  feet 
through,  and  from  sixty  to  ninety  feet  to  the  limbs  ;  and  this  conver- 
sation was  had  but  a  day  or  two  before  the  bargain Vas  consummated." 
This  testimony  is  substantially  corroborated  by  that  of  White,  and  in 
some  respects  the  testimony  of  White  is  still  stronger.     On  being 
asked  what  proportion  ol"  the  lots  did  Wing  and  Dean  represent  as 
having  pine  on  them,  he  replied,  that  the  expression  was  unqualified; 
and  it  was,  that  the  pine  lands  would  have  from  sixty  to  ninety  trees 
to  the  acre  ;  and  one  of  the  defendants  said  he  thought  he  would  not 
be  afraid  to  warrant  forty  trees  to  the  acre.     On  being  asked  if  the 
defendant  referred  to  the  whole  or  a  part,  says  he  did  not  refer  to  any 
particular  part. 

The  testimony  of  George  E.  Savage  alone  sustains  to  some  extent 
the  ground  taken  in  tlie  answers.  He  left  Marshall  some  time  be- 
fore the  conversation  referred  to  by  Camp  and  White,  and  before  the 
bargain  was  closed.  He  was  examined  a  long  time  after  the  transac- 
tion took  place.  But  admitting  his  testimony  to  be  substantially  true, 
if  the  testimony  of  Samuel  Camp,  Wliite,  and  Hermon  Camp  of 
subsequent  conversations  is  also  taken  as  true,  (and  I  do  not  see  how 
it  can  be  avoided,)  it  would  not  change  the  result. 


306  CASES  IN  CHANCERY, 

^**'cuit*^''^"       ^^^  testimony  of  Hcrmon  Camp  of  the  conversation  which  took 

v.^"Y"^/  place  at  the  time^  of  the  delivery  of  the  deed  is  important.     At  this 

°s/     time,  it  would  appear  by  the  testimony   of  this  ^witness,  the  defen- 

Wing  and 

Dean,  dants  assured  the  complainant  that  there  were  six  hundred  and  forty 
acres  of  good  pine  land,  which  would  average  forty  trees  to  the  acre. 
He  further  states  that  Jones  said  he  had  never  been  on  the  land,  and 
that  he  depended  on  the  statement  of  the  defendants. 

There  can  be  no  doubt  that  the  lands  turned  out  to  be  very  different 
from  such  lands  as  the  complainant  would  naturally  have  been  led  to 
expect  from  these  representations.  The  witnesses  vary  somewhat  as 
to  the  quantity  of  pine  lands.  One  of  the  witnesses  states  that  there 
may  be  in  all  one  hundred  and  seventy  acres  of  pine,  but  of  a  quali- 
ty inferior  to  the  representations.  Another  from  one  hundred  and 
eighty  to  one  hundred  and  eighty-five,  averaging  from  eighteen  to 
twenty-two  trees  to  the  acre.  Another  witness  states  the  quantity  at 
sixty  acres  of  good  pine.  The  other  witness,  Lyon,  says  there  may 
be  one  hundred  acres  of  pretty  fair  pine  land,  averaging  about  twen. 

ty  trees  to  the  acre. 

It  would  seem  that  but  about  one-fourth  of  the  land  has  pine  timber 
upon  it,  and  upon  this  not  much  more  than  half  the  quantity  which 
the  complainant  would  have  been  led  to  expect  from  the  representa- 
tions made  ;  and  the  complainant  was  a  stranger,  who  had  not  seen 
the  lands,  and  who  relied  upon  the  representations'of  the  defendants. 
Whether  these  representations  were  made  knowing  that  they  were 
untrue,  or  were  made  without  knowing,  whether  they  were  true  or 
false,  the  effect  upon  the  complainant  is  the  same,  and  the  conse- 
quence which  must  follow,  must  be  the  same. 

The  complainant  as  appears  from  the  case,  tr-usted  to  them  and 
was  misled.  Some  other  points  were  made  in  the  case,  but  as  their 
consideration  cannot  vary  the  result,  if  is  not  necessary  further  to  re- 
fer to  them. 

The  only  doubt  I  have  had  in  the  case  has  resulted  from  a  slight 
degree  of  suspicion  from  the  great  degree  of  confidence  which  seems 
to  have  been  reposed  in  the  defendants  by  the  complainant,  that  he 
may  have  seemed  to  rely  on  these  representations,  with  a  view  to  a 
resort  to  this  mode  of  redress ;  but  there  is  not  sufficient  shown  in 
the  case  to  authorize  this  conclusion,  and  I  think  it  is  not  so  ;  and 


CASES  IN  CHANCERY.  307 

there  is  no  alternative  left  to  the  court  but  to  declare  the  contract  '^''.'.IJ',^"' 
rescinded,  and  to  decree  a  re-delivery  of  the  remaining  portion  of  the  v.^^/"^ 
goods  to  the  complainant,  and  award  the  re-payment  to  him  of  the       "Ji^" 
value  of  the  goods  which  have  been  sold  by  the  defendants,  and  to     ucuu. 
decree  that  until  this  payment  shall  be  made,  he  shall  retain  his  lien 
upon  the  lands  as  a  security  for  the  amount  due  him  for  the  goods 
which  have  been  sold. 
Decree  accordingly. 

Note.    An  appeal  was  taken  in  this  case  to  the  Supreme  Court- 


a08  CASES  IN  CHANCERY. 


Austin  Wales  vs.  the  Presidext,  Directors   and   Company  op 

THE  Bank  op  Michigan. 

First  Circuit.  rp|,p  allegations  in  a  bill  upon  demurrer  arc  taken  to  be  true. 

Where  a  note  for  SlUUU  was  nmilc  payable  at  the  Bank  of  Micliigan  and  other  notes  were  turn- 
ed out  by  the  maker  to  secure  the  endorser  of  the  glUOO  note,  with  the  understanding  and  a- 
greeincnt  that  the  notes  so  turned  out  should  be  placed  in  the  bank  for  collection,  and  when  a 
satlicient  amount  should  be  collected  on  the  notes  so  turned  out  to  pay  the  ^1000  note,  the 
same  should  be  applied  in  payment  thereof;  it  jcas  Ae/d  that  it  came  fairly  within  the  scope 
of  the  powers  of  the  officers  of  the  bank,  as  one  of  the  most  ordinary  transactions  of 
taking  security  for  a  debt. 

When  the  defendaiU  is  ignorant  of  the  facts  which  constitute  his  defence  at  law  pending  the 
suit,  or  that  the  defence  could  not  have  been  set  up,  as  a  defence  at  law  ;  it  forms  an  excep- 
tion to  the  rule  that  equity  will  not  interfere  to  relieve  against  a  judgment  at  law. 

The  bill  in  this  case  states  that  complainant  endorsed  for  the  sole 
benefit  and  accommodation  of  one  Wessel  Whitaker,  a  noie  made  by 
him  dated  July  5th,  ISSl,  payable  ninety  days  after  date  to   the  or- 
der of  E.  T.  Clark  and  Isaac  O.  Adams,  at  the   Bank   of  Michigan 
for  the  sum  of  $1000.     That  the  note  was  endorsed  by  Clark  &  Ad- 
ams as  first  endorsers,  and  Whitaker  delivered  to  complainant  to  se- 
cure the  complainant  for  endorsing,  one  note  for  $600  or  thereabouts 
and  another  note  for  $1,391  36,  with  authority  to  collect  a  sufficient 
amount  on  these  notes  to  indemnify  complainant  for  his  endorsement. 
That  this  agreement  was  communicated  to  E.  P.  Hastihgs,  President 
of  the  Bank  of  Michigan  ;  and  the  notes  were  placed  in  his  hands  to 
be  so  collected  and  applied.     Complainant  was  sued  on  his   endorse- 
ment, and  May  1st,  1839  judgment   was  rendered  against   him  for 
$1,131  21,   and   fi.    fa.  was  issued  thereon.     That  after.the  fi.  fa. 
had  been  issued,  upon  inquiry  at  the  bank,  complainant  ascertained 
that  the  note  for  $600  had  been  collected,  and  the   amount  had  not 
been  applied.     That  the  bank  had  let  Theodore  Romeyn  have  the 
$1,391  36  note  and  had  taken  from  him  an  agreement  to   pay  the 
amount  due  thereon  in  sixtj  days,  to  which  agreement  complainant 
never  assented. 

The  bill  prayed  for  a  perpetual  injunction,  and  for  a  release  and 
discharge  of  the  judgment  against  complainant  and  for  other  relief 

To  this  bill  the  defendants  demurred.. 


CASES  IN  CIIANCRRY.  309 

Joy  cSi  Porter  in  support  of  the  demurrer,  cited  G  Pc/er*  01 ;   1  Fi"««rcuit. 
Johns  Ck.  49,  320,  4G5  ;  2  Id.  228.  ^Vak-«. 

Haiikof 

D.  Goodwin, contra,  cited  5  Pelcrs\id.  Midiigan. 

The  Chancellor — Tlie  grounds  taken  in  support  of  the  demurrer 
are  these : 

First.  That  Mr.  Hastings,  then  President  of  the  bank  was  acting 
as  the  agent  of  Wales,  and  not  in  behalf  of  the  bank. 

The  question  now  presented  is,  upon  demurrer,  by  which  the  alle- 
gations in  the  bill  for  the  purpose  of  this  decision  must  be  taken  to  be 
true. 

The  allegation  is,  that  the  notes  which  were  held  as  collateral  se- 
curity '*  were  placed  by  the  complainant  in  the  bank  with  the  said 
President  thereof,  to  be  by  the  said  President,  Directors  and  compa- 
ny used,  held,  collected  and  applied  as  before  mentioned  ;  that  is,  for 
the  purpose  of  paying  the  note  of  Whitaker,  of  which  Wales  was  in- 
dorsee 

It  further  appears  that  one  of  the  notes  of  about  S600,  so  deposi- 
ted, has  been  collected,  and  that  the  proceeds  have  not  been  applied 
to  the  payment  of  the  note  indorsed  by  Wales. 

That  the  other  note  has  been  given  up  by  the  then  President  of  the 
bank,  upon  the  undertaking  of  another  individual  to  pay  to  the  bank 
the  amount  of  Whitaker's  note,  upon  which  Wales  was  endorser. 

Under  these  allegations  uncontradicted,  it  would  seem  that  these  se- 
curities have  been  treated  throughout  as  a  part  of  the  security,  on 
which  the  bank  relied  for  the  payment  of  this  note,  and  that  it  comes 
fairly  within  the  scope  of  the  powers  of  the  officers  of  the  bank  ;  \i 
was  one  of  the  most  ordinary  transactions,  to  wit,  taking  security  fur 
a  debt. 

The  fact  that  one  of  the  notes  has  been  collected  and  the  proceeds 
not  applied  as  was  agreed,  and  that  the  bank  is  still  proceeding  to  col- 
lect the  entire  judgment  must  be  fatal  to  a  general  demurrer,  unless 
it  can  be  sustained  on  other  grounds. 

Second.  The  other  ground  in  support  of  the  demurrer  is,  that  this 
complainant  comes  too  late.  That  he  should  have  made  his  defence 
at  law. 


310  CASES  IN  CHANCERY. 

Firstcircuit,     ^]^q  j-yle  OH  this  subject  is  very  rigid,  and  should  be  adhered  to. 

AVaies     ^^^  ^his  seoms  to  me  to  come  within  the  excepted  cases. 

Bank  of        The  Tule  laid  down  in  Lansing  vs.  Eddy,  1  Johns  Ch.  51,  is  stated 

■^    "  by  Chancellor  Kent  to  be,  that  this  court  will  not  relieve  against  a 

judgment  at  law  on  the  ground  of  its  being  contrary  to  equity,  unless 

the  defendant  below  was  ignorant  of  the  fact  in  question,  pending  the 

suii,  or  it  could  not  have  been  received  as  a  defence.     This   relief  is 

often  also  refused  where  the  party  has  been  guilty  of  negligence. 

The  allegation  here  is,  that  the  complainant  confidently  relied  and 
expected  the  defendant  would  collect  and  apply  the  proceeds  of  these 
notes  to  the  payment  of  the  note  of  VVhitaker,  on  which  he  was  en- 
dorser, and  did  not  know  or  suspect  he  had  any  legal  defence  until  af- 
ter the  judgment  was  rendered,  when  he  for  the  first  time  learned  that 
one  of  the  notes  had  been  collected,  but  the  proceeds  Jiad  not  been 
applied;  and  that  the  other  had  been  transferred  upon  the  understan- 
ding of  a  third  person  to  pay  this  identical  note,  upon  which  the  judg- 
ment is  rendered  against  him  as  endorser. 

The  circumstances  were  well  calculated  to  lull  the  complainant  in- 
to security.  But  for  these  transactions  of  the  defendants,  there  was 
no  defence  to  the  note  ;  of  these  he  knew  nothing  until  after  the 
judgment  was  rendered,  the  complainant,  relying,  as  he  says,  that 
the  money  would  be  collected  upon  the  collateral  notes  to  pay  off  this 
liability. 

The  demurrer  must  be  overruled  with  leave  to  answer. 

Demurrer  overruled. 


CASES  IN  CHANCERY.  ■ill 


John  Fiieeman  vs.  Tlie  Michigan  State  Bank 

Ciiurls  li.nvo  always  l'e«ii  rigiil  in  rcniiriiig  Unit  llic  proitospd  aiiicrulnients  j-lioulil  lie  blaliil  la  Kirsl  CIrouit 
llie  a|iiilicalioM,urul  a  Ucl'cnclam  will  nol  usually  be  pcruiillcil  lo  set  up  a  fact  or  slate  of  facts,  's^^V^^ 
incoiisisieiil  witli  die  original  defence.  iTi-cmaii 

IS. 

When  a  motion  was  made  to  amend  a  |)lea,  wliirli  molioii  was  liased  U|)on  an  sididavil,  filalini;      Micliiiran 

Stale   Italik. 
an  additional  lad  which  was  unknown  lo  the  defendant  at  the  time  of  filing  the  original  pica, 

and    consislciit  with  the  facts  pleaded,    I  lie  court  granted  the  motion. 

It  is  not  usual  lo  refuse  leave  lo  amend  pleas,  yet  tlic  dcfcuduut  must  be  tied  down  lo  a  very 
short  tunc  in  which  to  amend. 

This  practice  isconsisleiil  willi  the  prnriji'c  in  pciaiiltin^  aniendmenls  to  sworn  answers,  and 
there  is  no  reason  why  the  rule  should  not  he  ailniitled  in  amending  pleas  as  well  as  sworn 
answers. 

If  a  plcji  may  he  mnended  upon  the  ground  of  a  mistake  or  inadvertence,  there  can  he  no  good 
reason  why  it  should  not  he,  for  the  purpose  of  slating  a  newly  discovered  fad  necessary  to 
the  defence  and  consistent  with  the  original  plea. 

Tills  was  a  motion  lo  amend  a  plea.  The  motion  was  based  upon 
an  affidavit  setting  up  certain  facts  which  had  come  to  tlie  knowledge 
of  the  defendants  after  the  original  plea  had  been  fded  in  the  case. 

Joy  and  Portek,  in  support  of  the  motion. 

There  can  exist  no  reason  against  the  amendment  of  a  plea  to  the 
merits  whicli  does  not  e.\ist  against  the  amendment  of  an  answer, 
other  circumstances  being  the  same.  Where  is  the  dilference  ?  Why 
should  a  defence  be  excluded  in  the  one  case  and  not  in  the  other  ? 

A  plea  to  the  merits  must  be  considered  an  answer,  and  subject  to 
the  same  rules  as  to  amendments  as  is  an  answer ;  there  being  no 
reason  for  any  dilTerence.  This  I  take  to  be  the  reason  whtj  there  is 
no  Grille]  as  to  the  amendment  of  a  plea.  Story  Eq.  PI.  545,  sec- 
tion  701,  the  tchole  section  13  Vesei/  438.  We  have  complied  with 
all  the  requirements  of  the  section  in  Story.  In  the  Vesey  case, 
Lord  Eldon  says  "  I  shall  certainly  give  leave  to  amend.  " 

Slory  Eq.  Phi.,  section  895,  j^^S^  685.  Story  says — "  But 
"  though  it  is  not  usual  to  refuse  leave  to  amend  pleas,  yet  the  defeu- 
"  dant  will  be  tied  down  to  a  very  short  lime  in  which  to  amend." 

Story  also  in    Eq.  Pld.,  page  685,  section  89G,  puts  pleas  and 

Vol.  I.  40 


312  CASES  IN  CHANCERY. 

First  Circuit  j^,^g^ygj.g  on  the  same  ground  as  to  amendments;  classes  them  to- 
Freeman  gether.  '»  Ansvvers  and  pleas  on  oath  says  he  &c.  The  most  com- 
Miciiigan    "mon  case  of  amendment  is  where  through  inadvertency  the  defen- 

felale  Bunk. 

"  dant  has  mistaken  a  fact  or  date."  Is  not  the  case  of  a  newly  dis- 
covered fact  equally  as  strong  ? 

See  also  subsequent  section  897  8lory''s  Equity  Pleadings  page 
686. 

8ee  also  section  902,  page  688  of  Story  Equity  Plds.,  which  is  ex- 
actly in  point  and  shows  the  principle  by  which  the  court  is  governed' 
and  section  903  8fc. 

There  can  be  no  case  fo  und  of  any  refusal  to  amend  a  plea  where 
the  amendment  was  necessary  to  place  the  grounds  of  defence  fully 
and  fairly  before  the  court.  It  would  be  inequitable  and  unjust  to 
do  so.  It  is  not  the  rule  nor  the  practice;  on  the  contrary  Courts  of 
Equity  are  always  liberal  in  these  matters,  to  promote  equity  and  jus- 
tice." 

It  will  be  found  in  examining  the  cases  that  where  there  has  been 
any  doubt  about  allowing  amendments,  the  amendatory  matter 
has  been  some  alteration  of  the  plea  filed,  in  a  date,  matter  of 
fact,  &c.;  so  that  the  amendment  may  contradict  the  substance  of  the 
plea,  &c.  In  such  cases  unless  there  has  been  an  evident  slip  or 
mistake,  no  amendment  will  be  allowed. 

The  equity  and  justice  of  the  case  is  so  clear  that  there  needs  no 
discussion  really  of  the  point.  It  would  be  iniquitous  to  shut  out  a 
just  and  perfect  defence  on  such  grounds. 

H.  H.  Emmons,  contra. 

The  complainant  contends  no  precedents  can  be  found  where  an 
amendment  of  a  iilca  is  allowed  when  there  is  no  mistake  in  the  draw- 
ing of  the  plea.  The  mere  fact  that  the  defendant  was  so  negligent 
that  he  did  not  enquire  about  facts  which  he  knew  to  be  necessary,  or 
which  he  was  hound  to  know  were  necessary  when  he  might  have 
known  them,  on  enquiry.  If  an  amendment  is  allowed  in  this  case, 
where  is  the  case  in  which  it  will  not  be  ? 

Story's  Eq.  PI.  545,  lays  down  the  doctrine,  it  must  be  some  slip 
of  the  pen  or  some  clerical  error. 


CASES  IN  CHANCERY.  313 

Story- s  Ef].  PI.   G85,  s?c//on  89G.     Picas  upon  oath  will  not  for  ^'"'*^''''^"'' 
obvious  reasons  easily  suffer  to  1)0  amended,  it  must  be  inadvertency,    Frepman 
mistake  in  a  date,   &c.     See  also  1  Hoffman  P.  226,   Cooper  Eq.    Mi.^hiiran 

Stale  Bank. 

PI  336   387. 

This  is  but  the  very  case  which  the  books  say  cannot  be  done. — 
"  First  get  the  opinion  of  the  court,  and  then  look  up  evidence  to  sup 
*»port  amendments  to  meet  such  opinion." 

Here  is  no  slip  of  the  pen,  no  inadvertency,  but  a  deliberate 
framing  of  a  pleading,  omitting  facts  which  the  defendant  now  alleges 
he  did  not  knotv.     He  might  have  known  them  and  that  is  sufficient. 

The  rule  is  surprise,  mistake,  or  inadvertence. 

In  this  case  no  great  equity  is  to  be  perilled.  The  only  equity  is 
to  make  a  poor  man  take  wild  land  for  an  eastern  draft  on  which  he 
paid  the  money.  And  by  looking  at  the  doctrine  of  amendments,  and 
this  class  of  them  especially,  it  will  be  found  the  nature  of  the  de- 
fence and  the  equity  of  the  bill  always  greatly  influences  the  allow- 
ance. This  bank  being  a  public  institution,  it  probably  has  a  right  to 
say  here  that  it  is  paying  sj)ecie  on  its  bills. 

The  Chancellok. — Leave  to  amend  is  usually  based  upon  mis- 
take, inadvertence,  &c. 

In  this  case  it  is  sworn  in  the  affidavit,  that  the  additional  fact 
which  it  is  desired  to  present  to  the  court  by  this  amendment,  was  un- 
known at  the  time  of  filing  this  plea. 

Courts  have  always  been  rigid  in  requiring  that  amendments  of 
this  kind  should  be  stated  in  the  application,  and  a  defendant  will  not 
usually  be  permitted  to  set  up  a  fact  or  a  state  of  facts  inconsistent 
with  the  original  defence.  But  the  amendment  here  contemplated 
goes  no  farther  than  to  state  an  additional  fact  unknown  at  the  time 
of  filing  the  original  plea,  and  perfectly  consistent  with  it. 

In  examining  all  the  cases  cited,  I  can  find  no  one  where  leave  to 
amend  under  circumstances  analogous  to  these  has  been  refused, 
where  the  amendment  is  necessary  to  place  the  grounds  of  defence 
fairly  before  the  court. 

The  rule  is  stated  in  Cooper's  Pleading,  336,  that  it  is  not  usual 
to  refuse  leave  to  amend  pleas,  yet  the  defendant  must  be  tied  down 
to  a  very  short  time  in  which  to  amend  ;  and  this  is  fully  sustained 


314  CASES  IN  CHANCERY. 

First  rircilit  {jy  l]^^Q  (.jjgg  cited,  2   Vesey  85,    where  leave  was  given  to  plead  r/e 

Mic-higaii        Tills  practice  is  consistent  Avith  the  practice  in  permitting  amend- 
'"  ments  to  sworn  answers,  and  I  can  see  no  reason  why  the  rule  should 
not  be  admitted  in  amending  pleas  as  well  as  sworn  answers. 

This  is  not  a  case  where  a  party  first  obtains  the  opinion  of  the 
court,  and  then  sets  up  an  additional  fact  known  to  him  at  the  time  of 
pleading,  or  a  defence  inconsistent  with  the  first  plea. 

It  appears  that  this  was  unknown  at  the  time  of  filing  the  plea,  but 
has  since  been  ascertained.  I  can  see  no  danger  in  allowing  an 
amendment  in  such  a  case  when  it  seems  absolutely  necessary  to 
place  the  defence  fairly  before  the  court. 

On  the  contrary  it  seems  to  me  to  be  in  entire  harmony  with  the 
practice  in  analogous  cases.  If  a  plea  may  be  amended  upon  the 
ground  of  a  mistake  or  inadvertence,  I  do  not  see  why  it  should 
not  be  for  the  purpose  of  stating  a  newly  discovered  fact  necessary 
to  the  defence  and  consistent  with  the  original  plea. 
Amendment  allowed  if  made  within  ten  days. 


OASES  IN  CIIANCRRY.  ^ir) 


Attorney  Genera T.  r.<f.  Tlic  P>ank  op  Michioan, 

The  jnrisdiclion  of  this  court  nvpr  corporate  hoiiics,  for  the  purpose  ofrcs  irainhig  their  opera-  f""*"'  rirciiil 
liona,  orof  wimliiig  up  tlicir  concerns,  13  based  [upon  aid  controlled  hy  the  statutes  of  the 
st;Uc.    It  has  no  such  jurisihclion  at  common  law,  or  under  Us  ceneral  einiily  powers,  and  ii 
will  not  interfere  except  when   ihts  case  is  fairly  brought  within  the  scope  and  object  of  llic 
statute  conferring  this  special  jurisdiction. 

The  provisions  of  the  acts  of  June  21, 1837,  and  the  act  of  April  12,  ISU,  in  regard  to  banks 
and  incorporations  commented  upon  and  explained. 

Where  one  part  of  an  act  is  equivocal,  oilier  portions  of  the  net  may  be  resorted  to  11s  a  c;\iidc 
The  occasion  and  the  reason  of  the  cnaclnient,  which  is  the  same  tliin^  as  tlic  old  law  ami 
Ihe  mischief;  the  letter  of  the  act,  whether  words  be  used  in  their  proper  or  in  a  technical 
sense ;  the  context,  the  spirit  of  the  act,  whether  statutes  be  in  their  nature  remedial  or  pe- 
nal, the  subject  matter  and  the  provisions  of  (he  act,  and  the  intent  of  the  legislature  in  pas. 
sing  it,  are  to  be  considered:  which  intent  is  not  to  be  collected  from  any  particular  expression, 
but  from  a  general  view  of  the  whole  of  the  act. 

If  a  corporation  has  forfeited  its  rights  by  misfeasance  or  nonfeasance,  such  forfeiinrc  must  be 
shown  by  the  pleadings ;  it  is  not  to  be  presumed;  the  legal  prcsumpuon  is  otherwise. 

The  fact  that  a  bank  [not  protected  by  statute,  auihorizing  a  suspension  of  specie  payments] 
has  stopped  payment  is  not  of  itself  conclusive  evidence  of  its  inability  to  pay  its  debts,  but  is 
prima  facie  evidence  of  inability  or  insolvency. 

The  rule  adopted  in  this  state  has  been  not  to  grant  an  injunction  in  the  first  instance  upon  the 
allegation  alone  that  a  bank  has  stopped  payment,  but  to  grant  a  rule  to  show  cause  and  re- 
quire notice  to  be  given  to  the  defendanls.  If  not  explained  or  excused  in  cases  where  the 
b.ink3  are  not  protected  from  a  forfeiture  of  their  charters  by  reason  of  a  failure,  the  court 
would  be  authorized  to  grant  an  injunction  and  appoint  a  receiver.  But  when  banks  are  au- 
thorized to  suspend  specie  payments,  such  refusal  is  not  even  prima  facie  evidence  of  insol- 
vency.    Sec  nolc  3,  at  the  end  of  the  case. 

The  true  construction  of  the  sixth  section  of  the  suspension  act  of  April  12, 1841,  is  that  tin- 
statements  should  be  made  out  and  transmitted  to  the  Secretary  of  Suue.  on  Ihe  days  specified, 
or  as  soon  thereafter  as  the  same  can  be  made_  out  and  staletl.  See  section  6  in  note  4  at  tlic 
end  of  the  case. 

Where  no  lime  is  prescribed  in  which  an  act  is  to  be  done,  it  must  be  done  ina  reasonablclimc 
and  this  must  be  determined  by  the  tFibunal  before  which  the  question  may  i)e  made. 

Motion  by  complainant  ibr  a  receiver,  and  on  the  part  of  the  de- 
fendant for  a  modification  of  the  injunction. 

The  bill  states  that  December  19,  1817,  the  bank  of  Michigan 
was  incorporated,  with  capital  of  $100,000;  was  organized  and  went 
into  operation. 


31G  CASES  IN  CHANCERY. 

First  Circuit      rjyy^^^  |j^  accordance  with  the  provisions  in  its  charter,  the  capital 
Aiiorncy    was  afterwards  augmented  to  the  amount  of  $500,000. 


General 

vs. 
Ciinkof 


That  February  2.5,  1831,  the  charter  was  continued  for  twenty- 
l\iiciirga'n.   five  years  from  and  after  the  first  Monday  in  June,  1839. 

That  ever  since  they  commenced  doing  business,  and  down  to  the 
present  time,  they  have  had  a  banking  house  in  Detroit,  and  have 
done  an  extensive  banking  business.  That  down  to  1837,  they  were 
unembarrassed,  and  were  able  to  meet  and  pay  all  their  liabilities 
upon  demand.  But  ever  since  that  period,  and  down  to  the  present 
time,  they  have  labored  under  embarrassments,  and  have  been  una- 
ble during  the  greatest  portion  of  the  last  mentioned  period,  and  are 
now  unable  to  meet  and  pay  their  liabilities;  and  that  their  officers  have 
for  some  time  past  refused  and  still  continue  to  refuse  to  pay"  the 
debts  of  the  corporation;  and  that  they  have  almost  ceased  the  trans- 
action of  any  business  as  a  bank. 

That  the  present  liabilities  of  the  bank  are  large  ;  that  its  bills  is- 
sued and  in  circulation  amount  to  upwards  of  [8200,000  ;  that  it  is 
indebted  largely  to  depositors,  and  otherwise;  all  of  which  are  paya- 
ble on  demand. 

That  the  state  of  JMichigan  is  a  creditor  as  bill  holder  to  over  $20,- 
000.  That  June  11th,  1841,  complainant  demanded  payment  or  se- 
curity, which  was  refused  by  the  president  and  cashier  of  the  bank. 
Complainant  charges  insolvency,  and  avers  that  the  interests  of 
the  state  require  that  it  shall  be  enjoined,  and  a  receiver  appointed. 
That  in  consequence  of  their  refusal  to  redeem  their  bills,  nume- 
rous suits  have  been  commenced  against  them,  and  their  cash  funds 
are  becoming  diminished,  and  some  creditors  receive  the  full  face 
of  their  debts,  while  others  may  ultimately  receive  but  partial  pay- 
ment. That  a  due  regard  to  the  interest  of  the  creditors  generally 
requires  an  injunction  to  prevent  the  inequitable  distribution  of  its 
cash  means. 

That  in  and  by  the  act  entitled  "  an  act  to  provide  for  proceedings 
in  chancery  against  corporations,  &c,"  approved  June  21,  1837,  the 
Chancellor  has  power  to  restrain  by  injunction  any  bank  from  exer- 
cising any  of  its  banking  powers,  and  from  receiving  or  paying  out 
any  thing,  whenever  the  Attorney  General  upon  bill  filed  shall  fur- 


CASES  IN  CHANCERY.  317 

nish  satisfactory  proof  that  such  hank  has  hccome  insolvent,  or  unable,  ^"''"  '-'"■i"" 
or  has  refused  to  pay  its  debts.     And  in  and  by  the  seventh  section,    Aiiormy 
the  Chancellor  may  compel  sucli  bank  to  dificover  any  stock,  proper-       Vi!^  "^ 
ty,  moneys,  things,  choses   in  action  or  effects  alleged  to  belong  to  it,  Michigau. 
or  in  any  manner  liable  for  the  final  payment  of  its  debts,  the  trans- 
fer and  disposition  thereof,  and  all  the  circumstances  of  such  trans- 
fer and  disposition  ;  and  that  every  such  ofiicer,  agent  or  stockholder 
may  be  compelled  at  the  discretion  of  the  Chancellor  to  answer  any 
bill  filed  to  obtain  such  discovery. 

The  bill  prays  that  defendants  be  required  to  answer  all  the  alle- 
gations in  the  bill,  and  particularly  that  they  answer  and  discover  as 
particularly  required  in  and  by  the  seventh  section  as  above  quoted. 

The  bill  prays  the  granting  of  writ  of  injunction,  &c.,  restrain- 
iog  them  from  exercising  any  of  their  corporate  rights,  privileges  or 
franchises,  and  from  collecting  or  receiving  any  part  of  their  debts 
due  or  to  become  due;  and  from  paying  out  or  in  any  way  transfer- 
ring any  of  the  money,  property  or  effects  of  the  bank. 

Also  for  the  appointment  of  a  receiver  or  receivers,  in  pursuance 
of  the  fifth  section  of  the  act  last  aforesaid,  in  order  that  the  assets 
of  the  bank  maybe  applied  in  an  equal  and  proportionate  manner  to 
the  payment  of  its  debts. 

The  answer  admits  the  organization  of  the  bank,  the  augmenta- 
tion of  stock,  the  extension  of  the  charter  ;  that  it  was  unembarrass- 
ed up  to  1837,  that  since  that  time  it  had  been  embarrassed  and  una- 
ble to  meet  and  pay  its  liabilities,  and  has  refused  so  to  do.  That  the 
present  liabilities  of  the  bank  are  large,  but  insists  that  its  liabilities 
are  now  less  by  $1,200,000,  than  in  1837,  and  $70,000  less  than  tlipy 
were  four  months  ago  ;  and  that  for  many  years  past  their  aggregate 
liabilities  have  not  been  so  small  as  now. 

Admits  indebtedness  to  the  state  of  Michigan  to  amount  over  $20,- 
000.  And  that  the  bank  officers  did  refuse  to  pay  the  same  as 
stated  by  complainant,  and  did  decline  to  execute  securities  for  the 
future  payment  of  the  same  in  specie ;  but  that  although  they  may 
have  declared  their  inability  to  do  so,  as  charged  in  the  bill,  it  was 
not  because  the  bank  was  not  possessed  of  tjiat,  and  a  much  larger 
amount  in  specie,  but  because  they  did  not  deem  it  their  duty  to  pay 


318  CASES  IN  CHANCERY. 

First  Circuit  tfje  state  of  Michigan  in  specie,  when  they  could  not  pay  all  bill  hol- 
'"-^^^^^^  tiers  in  specie.     But  they  aver  that  they  did  oiler  the  Attorney  Ge- 

Aitoniey  1  •'  j     i        i 

*^''""'''     ncral  to  turn  out  the  assets  of  the  bank  in  payment;  and  that  he 
imilfgan.  "light  have  selected  from  all  the  assets  amounting  in  all  to  nearly  a 
million  of  dollars  ;  and  of  a  value  very  much  more  than  suflicient  to 
cover  and  pay  all  the  debts  of  the  bank. 

Expressly  denies  insolvency,  and  avers  that  the  contrary  is  the 
fact.  That  on  15th  February  last,  upon  the  examination  by  com- 
mittee of  the  legislature,  the  said  committee  and  officers  of  the  bank 
made  a  scrutinizing  examination  into  the  situation  of  the  bank,  and 
of  all  its  assets  ;  by  which  investigation  it  vyas  ascertained  as  certain- 
ly as  such  a  fact  could  be,  that  the  assets  were  sufficient  to  pay  oiV 
and  discharge  all  its  liabilities  ;  and  not  only  so,  bift.also  to  leave  a 
surplus,  after  being  converted  into  cash  funds,  of  more  than  $400,- 
000,  to  be  divided  among  the  stockholders.  That  since  said  15th 
February  last,  no  material  change  has  taken  place  in  the  condition 
or  value  of  said  assets,  or  to  depreciate  ihem,  unless  it  be  that  the 
two  thirds  or  apjyraisal  lata  passed  last  winter  may  operate  injurious- 
ly. That  some  of  their  securities  have  been  changed — some  of  the 
paper  then  held  by  the  bank  has  been  paid  ;  but  that  no  change  has 
taken  place,  so  great  as  to  render  the  insolvency  of  the  bank  a  prob- 
able fact,  although  the  stock-holders  may  be  affected.  That  the  bank 
has  in  its  vaults  in  specie  funds  about  §50,000. 

Admits  that  numerous  suits  have  been  commenced  and  continue  to 
be,  to  the  injury  of  the  bank  by  accumulation  of  costs  and  expen- 


iies. 


Answer  avers  that  although  now  embarrassed,  the  bank  is  able  and 
willing  to  pay  and  redeem  all  its  bills  by  turning  out  their  assets. — 
That  many  of  its  creditors  are  desirous  of  being  thus  paid,  and  the 
interests  of  the  public  can  not  be  injured  by  it.  That  the  bank  has 
made  great  ellbrts  to  pay  off  their  large  liabilities  which  it  had  crea- 
ted in  1836-7  ;  and  has  succeeded  in  liquidating  almost  entirely  those 
which  were  the  largest  and  most  pressing,  and  is  now  comparative- 
ly free  from  the  pressure  of  large  debts. 

States  that  the  appointment  of  a  receiver  would  be  ruinous  to  the 
niterests  of  the  stockholders,  and  could  not  be  beneficial  to  the  pub- 


GASES  IN  CHANCERY.  319 

lie,  the  state  of  Michigan,  or  the  creditors  of  the  bank.     That  a  sud-  ^'"^^  ^''^'"'^ 
den  and  forced  winding  up  of  its  affairs  by  a  receiver,  would  be  pro-    Auomey 
ductive  of  mischief  and  injury  to  the  bank,  stockholders,  and  credi- 


Gcnerai 

vs. 
Biiiik  or 
t  OrS.  Micliiguti. 


Attorney  General,  in  person. 

Insolvency  is  defined  to  be  inability  or  refusal  to  redeem.  Both  are 
cliarged,  and  both  admitted. 

Suspension  of  payment  is  evidence  of  insolvency,  which  cannot 
be  rebutted  by  the  naked  assertion  of  its  ultimate  ability  to  pay. — 
Such  assertion  is  nothing  more  than  an  expression  of  an  opinion  as 
to  the  future  value  of  the  assets. 

Whether  such  opinion  is  well  or  ill  founded  depends  upon  the 
final  result,  and  cannot  be  known  until  the  usual  process  has  been 
gone  through  of  converting  them  into  money. 

The  statements  in  the  bill  furnish  evidence  of  insolvency. 

The  mortgage  to  the  Dvvights  is  evidence  of  insolvency. 

If  then,  there  is  good  reason  to  believe  the  bank  insolvent,  by 
whom  shall  its  affairs  be  icound  up  ? 

It  is  not  proper  to  leave  the  bank  in  the  hands  of  those  officers  un- 
der whose  administration  it  has  failed. 

The  appointment  of  receivers  is  necessary  for  this  purpose. 

The  directors  and  officers  of  the  bank  are  appointed  by  and  rep. 
resent  the  stockholders.  Their  sympathies  and  prejudices  are  with 
them,  and  are  adverse  to  the  bill  holders. 

The  appointment  of  strangers  will  secure  a  fearless  investigation 
of  its  affairs,  which  the  public  have  a  right  to  expect.  It  may 
become  their  duty  to  institute  proceedings  against  the  directors  and 
officers. 

The  facts  cannot  be  known  until  the  Receivers  investigate. 

In  the  language  of  Ch.  Walworth,  "  those  creditors  who  have  been 
stripped  of  their  property  by  the  failure  of  the  bank,  have  a  right  to 
claim  from  the  court  the  appointment  of  receivers  upon  whose  im- 
partial investigations  they  can  rely,  and  who  could  have  no  interests 
in  opposition  to  theirs."     1  Paige  517  ;  3  Wend.  538. 

Ch.  Walworth  says,  "  If  the  interesls  o(  stockholders  were    first 

Vol.  I.  41 


320  CASES  IN  CHANCERY. 

First  Circuit  eonsulted,  it  would  be  proper  to  give  to  tliose  indebted  to  the  bank, 
Attorney    ^^^  ^^  P^°^  cii'cumstances,  siifFicient  time  to  buy  up  the  bills  from 
'^Ts^f      honest  creditors  at  a  great  discount,  and  thus  restore  the  broken  in- 
Michigan.  stitution  to  a  state  of  solvency.     But  in  such  case  the  real  creditors 
would  lose  the  greatest  part  of  their  debts,  although  the  stockholders 
in  the  end  might  save  something  of  the  stock.     It  is  therefore  neces- 
sary and  proper,  in  every  case  of  this  kind,  for  the  protection  of  the 
creditors,  who  have  the  first  claim  to  the  property,  to  turn  its  ejects 
into  cash  rvith  the  least  possible  delay,  so  tliat  a  distribution  may  be 
made  before  their  necessities  or  fears  compel  them  to  sacrifice  their 
demands. 

The  bank  now  seeks  to  obtain  yro7?i  the  Chancellor  what  the  le- 
gislature refused  to  grant  them,  to  wit,  immunity  against  its  bill  hol" 
ders. 

Joy  and  Porter,  for  defendants. 

As  to  the  jurisdiction  of  the  court,  it  is  limited  by  the  statutes. 
1.    Edwards  Rfj).,  87,  and  cases  there  cited  are  conclusive. 

The  extent  of  the  authority  conferred  is  settled  by  this  court  in  tlie 
case  of  Barnumvs.  Bank  of  Pontiac  ;  ante  116. 

As  to  the  proof  of  insolvency  upon  which  charge  alone  the  in- 
junction rests.  See  1  Paige  515  ;  3  Wend.  590;  1  Edivards  92; 
2  Edwards  286. 

A  receiver  then  cannot  be  appointed.  Will  the  court  modify  the 
injunction  1  It  must  dissolve  it  on  motion,  why  not  then  modify  ? 
The  answer  is  ample  and  complete  as  to  the  only  charge  upon  which 
the  bill  rests  ;  the  whole  equity  of  the  bill  is  denied. 

The  only  real  question  is  whether  the  court  will  hear  this  motion  at 
this  time.  We  say  it  will,  because  the  whole  equity  of  the  bill  is  de- 
nied, and  exceptions  can  avail  the  complainant  nothing  if  they  are 
taken  ;  they  will  only  cause  injury  to  the  defendant  without  object. — 
The  rule  relative  to  exceptions  does  not  apply  in  such  a  case.  4 
Paige  111;  ante  162. 

Besides  the  court  reserved  by  its  own  order  the  power  to  modify 
at  any  time.  Edicards  on  Recv'rs.,  Swanst.  228  ;  Merivale  29  ; 
Eden.  122. 


IS. 

k 
igau. 


CASES  IN  CHANCERY.  321 

As  to  the  suspension  law,  I  will  remark  tliat    the  court    must   pre-  First  circuit 
same   that  the   bank  is  under  the  law,  until  the  Attorney  General  ^^"^'^^^ 

'  •'  AKorney 

shows  that  it  is  not.  Ocneral 

,  ca. 

So  far  as  the  Bank  of  Michigan  is  concerned,  the  terms  of  the  law  Ai^eh'^  "^ 
are  express  and  include  the  bank  by  name.     The  court  will  say  and 
presume   that  the  bank   has  accepted  a  law  enacted  for  its    benefit 
unless  the  contrary  appear.     The  answer  was  only  to  the  hill  filed. 
The  bills,  neither  of  them  charge  that  the  bank  has  not  accepted  or 
availed  itself  of  the  suspension  law,  and  it  must  of  course  be  taken 
to  have  done  so  unless  the  contrary  be  stated  or  in  some  way  appear. 
It  does  not  fall  upon  us  to  show  that  we  are  under  the  protection 
of  a  law   passed    for  our  express  benefit,  unless  the  opposite  party 
charges  that  we  are  not  under  it.     We  are  there  until  tliey  shoiv  that 
we  are  not. 

A  corporation  will  be  presumed  to  have  accepted  of  the  terms  of 
an  act  passed  for  its  benefit,  until  the  contrary  appear.  This  is  rea- 
son, and  the  principle  lias  been  repeatedly  decided  in  the  Supreme 
Court  of  the  United  States.  Indeed  this  must  be  so,  because  other- 
wise the  bank  could  not  show  the  fact  before  July.  The  question 
of  filing  a  statement  does  not  come  up  because  it  does  not  appear  to 
the  court  that  it  was  not  properly  filed.  And  had  any  such  charge 
been  made,  we  should  have  shown  that  it  was  properly  and  duly  filed 
under  the  law. 

The  Chancellor. — Before  proceeding  to  the  examination  of  the 
facts  disclosed  by  the  pleadings  in  this  cause,  it  will  be  necessary  to 
examine   the  statutory   provisions  which    have  a  bearing   upon   the 
question  presented.     The  jurisdiction   of  this   court  in  this  class  of 
cases  is  based  upon   and  controlled  by  the   statutes.     It   has  no  such 
jurisdiction  at  common  law.     Tlie   Attorney  General  vs.  the  Utica 
Ins.  Co.  2  ./.  C.  R.  371  ;  Same  vs.  Ba7ik  of  Niagara,  1  Hop.  354; 
Verplanck  vs.  Mercantile  Ins.    Co.,   1  Edu\  87.     In  the  last  men- 
tioned case  the  Chancellor  says  :  "  After  such  repeated  decisions  ex- 
pressly disclaiming  all  jurisdiction  over  corporate  bodies  for  the  pur- 
pose of  restraining  their  operations  or  of  winding  up  their  concerns 
under  the  general  equity  powers  of  the  court,  the  complainants  must 
not  expect  any  interference,  except  it  be  under  special  authority  of 


322  CA.SES  IN  CHANCERY. 

First  Circuit  existing  statutes,  and   when  the  case  is  fairly  brought  within  their 
Attorney    scope  and  object."     The  proceedings  in  this  case  are  based  upon  the 
^^"s.'*''     provisions  of  the  act  of  June  21st,  1837.     (1)  This  imposes  upon 
Wiciiigan.  the  court  the  duty  of  enquiring  how  far  the  powers  and  duties  of 
this  court  are  controlled  by  subsequent  legislation.     By  the  first  sec- 
tion  of  the  act   of  April  12th,   1841,  (2)  it  is  enacted  that  every 
provision  of  law  in  force  requiring  or  authorizing  proceedings  against 
the  Bank  of  Michigan    and   the  Farmers'   and  Mechanics'  Bank  of 
Michigan  and  their  branches,  with  a  view  to  forfeit  their  charters  or 
wind  up  their  concerns,  or  which  requires  them  to  suspend  their  ope- 
rations, and  proceedings  in  consequence  of  a  refusal  to   pay   their 
notes  or  evidences  of  debt  in  specie  is  hereby  suspended.     Section 
three,  requires  the  Bank  of  Michigan   to   lessen  its  liabilities  at  the 
rate  of  #20,000  quarter  yearly.     Section    four,  prohibits  any  bank 
from  dividing  or  paying  to  its  stockholders  or  to  any  person  for  them 
any  dividends,  profit,  or  interest,  until  after  it  shall    have  resumed 
paying  its  debts  and  liabilities  in  specie,  and  shall  have  continued  to 
do  so  in  good  faith  for  three  months.     Section  five  inhibits  the  banks 
and  their  officers  from   selling  specie  or  bullion  at  a  premium,  and 
from   purchasing  its  notes  at  a  discount ;  and  provides  that  "  every 
violation  of  this  section  shall  be  a  forfeiture  of  its  charter."     Section 
six  is,  "  that    every  such  bank  or  branch  shall  transmit  a  statement 
under  oath  of  the  president,  cashier,  and  a  majority  of  the  directors, 
of  its  true  condition,  once  in  every  three  months,  viz  :  On  the  first 
day  of  January,  April,  July  and  October,  to  the  Secretary  of  State, 
who  shall  cause  the  same  to  be  published  in  the  state  paper  ;  and  the 
expense  of  such  publication  shall  be  paid  by  the  banks  respective- 
ly."    Section  seven  is  as  follows :  "It  shall  be  the  duty  of  the  Sec- 
retary of  State,  on  the  receipt  of  each  quarterly  statement  provided 
for  in  the  sixth  section  of  this  act,  to  transmit  as  soon  as  practicable 
to  the  Governor,  Lieutenant  Governor,  Auditor  General  and  Trea- 
surer of  this  state,  each,  a  certified  copy  of  such  statement ;  and  if 
on  examination  of  the   same,  it  shall  appear  to  any  one  of  said  offi- 
cers, including  the  Secretary  of  State,  that  any  bank  availing  itself 
of  the  provisions  of  this  act,  is,  or  has  been  so  conducting  its  busi- 
ness, as  in  their  opinion  to  endanger  the  interests  or  security  of  the 


CASES  IN  CIIAXCERY.  ^iiJ 

public  ;  or  those  holding  its  notes  or  other  evidences  of  debt,  or  in  ^'"'  '^''"^^"■ 
any  way  improperly  to  abuse  the  privileges  by  this  act  granted  ;  or    Auortiry 

1        rt'  1     11     1  1  Ociieral 

if  from  any  other  cause  any  such  olTiccr  shall   have   good  reason  to         r5. 
believe  that  any  such  bank  has  so  improperly  conducted,  then  it  shall    Mkhigau. 
be  the  duty  of  such  officer  with  the  advice   and  consent  of  one  or 
more  of  his  associates  above  named,  forthwith  to  cause  an  examina- 
tion to  be  made  of  the  conduct  and  affairs  of  such  bank;  and  in  case 
it  shall  thereupon  appear  to  the  satisfaction  of  three  or  'more  of  said 
officers,  that  such  bank  is,  or  has  been  conducting  its  business  impro- 
perly as  aforesaid,  it  is  hereby  made   their   duty   forthwith  to  report 
such  fact  to  the  Attorney  General,  who  is  hereby  required  to  proceed 
against  such  bank  as  directed  in  the  tenth  section  of  this  act."     Sec- 
tion eight  provides,  that  the  Bank  of  Marshall,  the  Bank  of  Adrian? 
the  Merchants'  Bank  of  Jackson  County,  the   Bank  of  Constantino, 
and  the  Erie  and  Kalamazoo  Rail  Road  Bank,  may  avail  themselves 
of  the  provisions  of  this  act,  by  conforming  to  its  requirements,  up- 
on obtaining  the  certificate  of  the  Aiuiitor  General,  State  Treasurer, 
and  Secretary  of  State,  that   their   business  has  been  honestly  ma- 
naged, and  that  they  are  in  a  sound   condition.     Section  nine  pro- 
vides, that  the  Auditor  General,  State  Treasurer,  and   Secretary  of 
State,  before  they  proceed  to  examine  such  banks  as  may  apply  to 
them  for  that  purpose,  shall  make  oath  before  any  person  authorized 
to  administer  the  same,  that  they  will  not   grant  a  certificate  to  any 
bank  unless  they  shall  be  perfectly  satisfied  that  the  resources  of  such 
bank  are,  and  will  be  adequate  to  the  uUimate  payment  of  its  circu- 
lation, and  all  other  liabilities  permitted  by  this  act.     Section  ten, 
authorizes  the  Attorney  General  to  proceed  against  any  bank  avails 
ing  itself  of  the  provisions   of  this  act,  and  which  shall   directly  or 
indirectly  violate  the  same,  by  injunction,  quo  warranto  or  otherwise, 
in  the  same  manner  as  if  this  section  (probably  a  misprint  for  act) 
had  not  passed.     The  act  of  April  12,  1S41,  in  its  material  provisions 
is  a  literal  copy  from  the  suspension  law  of  New  York  of  I\Iay  16, 
1837.     The  first  section  is  identical  except  that   the  names  of  the 
Bank  of  Michigan,  and  the  Farmers'  and  Mechanics'  Bank,  are  in- 
troduced.    Of  the  construction  of  the  New  York  statute  there  is  no 
doubt.     In  respect  to  a  portion  of  the  banks  in  that  stale,  the  law 


324  CASES  IN  CHANCERY. 

First  Circuit,  requires  tliat  a  bank  which  shall  suspend  specie  payments   shall  on 
^Mioniev    P''^'^  *^*^  forfeiture  of  its  charter,  "  wholly  discontinue  and  close  their 
'^"s'^'*"    banking  operations."     What  was  intended  by   the  provision  of  the- 
Miciiigan.  ninth  section  of  the  suspension  law  of  New  York,  placing  the  banks 
under  the  supervision  of  the   bank  commissioners,  and    authorizing 
them  to  institute  proceedings  against  any  bank  in  dangerous  or  in- 
solvent circumstances?     It  could   not  have  intended    an  inability  to 
pay  their  liabilities  at  the  time,  as  the  very  object  of  the  law  was,  to 
relieve  the  banks  from  the  penalties  they  incuiTed  by  reason  of  such 
inability,     it  must  have  contemplated  ultiviate  insolvency.     By  our 
statute  the  oflicers  who  are  constituted  special  commissioners  for  this 
purpose,  may   if  they  are   satisfied  any  bank  Js  so  conducting  its 
affairs  as  to  endanger    the  security  of  the  public  or  those  holding  its 
notes,  institute  an  examination,  and  upon  the  concurrence  of  three 
of  them,  proceedings  may  be  instituted  under  the  provisions  of  the 
act.     There  can  be  no  doubt  that  the  construction  of  the  first  section 
of  the  New  York  statute  is,  that  every   provision  of  law  requiring 
or  authorizing  proceedings  against  banks  with  a  view  to  forfeit  their 
charters  or  wind  up  their   concerns,  and  that  every  provision  of  law 
which  requires  them  to  suspend  operations  and  proceedings  in  conse- 
quence of  a  ret'usal  to  pay  their  notes  and  evidences  of  debt  in  spe- 
cie is  suspended.     I  do  not  well  see  what  other  construction  can  be 
given  to  this  section  either  in  the  New  York  act  or  our  own.     The 
words  "  or  which"  must  refer  to  ih.e  provisions  of  law  which  were  in- 
tended to  be  suspended.     Where  one  part   of  the  act  is  equivocal, 
other  portions  of  the  act  maybe  resorted  to  as  a  guide.     "The  occa- 
sion and  the  reason  of  the  enactment  (which  is  the  same  thing  with 
tlie  old  law  and  the  mischief,)  the  letter  of  the  act  (whether  words  be 
used  in  their  proper  or  technical  sense,)  the  context,  the  spirit  of  the 
act,  (whether  statutes  be  in  their  nature  remedial  or  penal,)  the  sub- 
ject matter  and  the  provisions  of  the  act,  have  all  to  be  considered. 
Again  the  intent  of  the  legislature  is  not   to  be  collected  from  any 
particular  expression,  but  from  a  general   view  of  the  ivliole  of  the 
act."     Per.  Best.  C.  J.  3  Bingham  196;  Dicarris  on  Statutes  47, 
48.       The   ninth    section  of  the  law   of  New   York   places  the 
suspended  banks  under  the  special  supervision  of  the  bank  commis- 
sioners.    The  sixth  section  of  our  law  requires  the  suspended  banks 


CASES  I N  CIT ANCEU Y .  325 

lo  transmit  a  statement  of  their  condition  once  in   three  months  to  f""'"^-''''""'' 
Ihe  Secretary  of  State.     Section  seven  contemplates  that  the  otTicers    ^^n„r„cy 
therein    mentioned   and  to  whom  a  copy   of  each  statement  is  to  be     ^'^'.^^'^'■'' • 

,  .    .  ,  naiik  of 

transmitted,  and  each  ol  them,  shall  exercise  a  supervision  over  those  Mknigau. 
suspended  banks,  and  if  in  the  opinion  of  either  of  them,  any  bank 
is,  or  has  been  so  conducting  its  business  as  to  endanger  the  interests 
or  security  of  the  public  or  those   holding  its  notes  or  other  eviden- 
ces of  debt,  any  such  officer  with  the  advice  and  consent  of  one  or 
raore  of  his  associates  may  institute  an  examination  of  its  atfairs. — 
It  has  been  shown  that  in  the  construction  of  statutes  which  may  ad- 
mit of  doubt,  we  must  resort  to  the  object  and  intent  of  the  legisla- 
ture ;  the  mischief  to  be  obviated,  and  the  remedy  contemplated.     It 
appears  from  the  pleadings  in  this  cause  that  the  legislature  had  insti- 
tuted a  careful  investigation  of  the  affairs  of  this  bank.     The  condi- 
tion of  its  assets  was  not  then   materially  variant  from  the  present. 
Its  liabilities  have  since  that  time  been   diminished  some  $120;000, 
and  it  appears  that  for  many  years  no  part  of  their  assets  have  been 
used  otherwise  than  for  the  payment  of  its  liabilities.     The  legisla- 
ture must  have  been  aware  of  the  inability  of  the  bank  to  pay  off  its 
liabilities  immediately,  though  they  seem  to  have  entertained  no  doubt 
of  its  ullimate'solvency.     Can  it  by  any  possibility  be  inferred  that  the 
legislature  contemplated  or  intended  by  this  legislation  that  this  bank 
should  be  wound  up  on  the  ground  of  insolvency  under  the  state  of 
facts  here  presented?     The  insolvency  is  again  and  again  denied  in 
every  form  by  the  president  and  directors,  who  must  be  deemed  bet- 
ter able  to  form  an  opinion  than  strangers  unacquainted  with  its  con- 
cerns, and  this  too  after  a  full,  careful,  and  detailed  investigation  of 
all  their  assets  and  liabilities.     Not  only  is  insolvency  denied,  but  it 
is  alleged  that  there  will  remain  a  large  surplus  after  the  payment  of 
all  their  debts  and  liabilities.     Did  the  legislature  intend  to  treat  the 
several  banks  which  should  become  subject  to  the  suspension  act  une- 
qually ?     This  cannot  be  supposed.     The  ninth   section   provides, 
that  the  banks  which  are  named  in   the  eighth  section  shall  satisfy 
the  Auditor  General,  State  Treasurer  and  Secretary  of  State,  "  that 
the  resources  of  sucli  bank  as  shall  apply  to  them  for  that  purpose, 
are,  and  will  be  adequate  to  the  ultimate  payment  of  its  circulation 
and  all  other  liabilities  permitted  by  this  act."     This  is  in  harmony 


ink 
Michigan 


326  CASES  IN  CHANCERY. 

First ciiciii'.  with  the  supervision  vested  in  those  officers  by  tlie  seventh  section. 
''^*''^''"'*^  Under  that  section,  if  they  or  any  three  of  them  should  become  sa- 

Attorney  •' 

General,    tjgfied  that  from  the  conduct  of  the  banlc  or  the  condition  of  its  affairs, 
Bmiifof    jgg^j  proceedings  were  necessary  to  effect  an  equality  of  distribution 
or  a  proper  application  of  its  means,  it  would  then  be  competent  for 
them  to  direct  proceedings  to  be  instituted  under  the  provisions  of 
that  act.     For  the  purposes  of  this  motion  it  should  be  remarked  that 
this  bank  must  be  considered  as  under   the  provisions  of  the  suspen- 
sion act.     It  was  placed  expressly  under  it  in  terms,  from  and  after 
the  passage  of  the  act.     If  it  has  forfeited  its  rights  under  it  by  mis- 
feasance  or  nonfeasance,  such  forfeiture   must  be  shown.     No  allu- 
sion is  made  in  the  pleadings  to  any  act  of  omission  or  commission 
by  which  such  forfeiture    has   been   incurred.     It  is  not  to   be   pre- 
sumed.    The  legal  presumption  is  otherwise.     It  has  been  held  that 
grants  beneficial  to  corporations  may  be  presumed  to  have  been  ac- 
cepted, and  an  express  acceptance  is  not  necessary.      Charles  River 
Bridge  vs.  Warren  Bridge  7  Pickering  344;  Dart.  Col.  vs.   Wood- 
ward  4:Wheaton  688;  U.  S.  Ba7ik  \s.  Dandridge  12  Wheatonll.  But 
admitting  that  the  operation  of  the  first  section  of  the  suspension  act 
should  be  limited  to  the  failure  to  pay  its  notes  or  evidences  of  debt 
in  specie,  which  from  a  careful  examination  I  think  it  cannot,  would 
the  result  be  varied?     The  legislature  could  not  have  intended  to  ap- 
ply one  rule  to  the  banks  specially  named  in  the  first  section  of  the 
act,  and  which  were  undoubtedly  the  principal  objects  intended  to  be 
benefited  by   it,  and  another  to  the  other  banks  named  in  the  act.— 
We  have  seen  that  those  banks  were  required  only  to  satisfy  the  of- 
ficers before  named  of  their  ability  ultimately  to  pay  their  liabilities. 
We  have  seen  this  ability  in  the  case  under  consideration  asserted  and 
reasserted  in  the  broadest   and  most  comprehensive   form  by  those 
best  acquainted  with  its  condition.     The  answer  for  the  purpose  of 
the  present  motion  must  be   taken  as  true.     Under  either  construc- 
tion of  the  act  then,  the  motion  must  be  denied.     Some  misapprehen- 
sion seems  to  have  been  entertained  upon  the  effect  of  the  refusal  of 
any  bank  not  protected  by  statute  to  pay  its  debts  or  liabilities  in  spe- 
cie.    The  rule  adopted  here  is  the  same  as  in  .New  York.     In  the 
case  of  the  Attorney  General  vs.  the  Bank  of  Columbia  1  Paige 
611;  the  Chancellor  says,  that  the  fact  that  the  bank  has  stopped 


CASES  IN  CHANCERY.  327 

pavment  is  not  of  itself  conclusive  evidence  of  its  inability   to  pay  *■'"■*' ^"■•^""• 
its  debts,  but  is  prima  facie  evidence  of  inability  or  insolvency.     In    jm,ornc-y 
the  case  of  Stuart  vs.   Mechanics'  Bank,  19  Johnson's  Rep.  A91 ;     Oencrai. 
it   is  said   "  a   bank    may   be  quite  solvent  notwithstanding    it  fails    Michigan. 
to  redeem  its  bills.     This    we   know  to  have  happened    in  several 
instances  where  the  ability  and  solvency  of  the  banks  have  been  af- 
terwards fully  established."     The  rule  adopted  here  has  been  not  to 
grant  an  injunction  in  the  first  instance  upon  this  allegation  alone, 
but  to  grant  a  rule  to  show  cause,  and  require  notice  to  be  given  to 
the   defendants.     If  not  explained  or  excused   in  cases  where  the 
banks  are  not  protected  from  a  forfeiture  of  their  charters  by  reason 
of  a  failure  to  pay  specie,  the  court  would  be  authorized  to  grant  an 
injunction  and  appoint  a  receiver.     (3)  But  where  banks  are  autho- 
rized to  suspena  specie   payments,  it  is  not  prima  facie   evidence  of 
insolvency.     It  may  be  proper  to  say  that  the  result,  to  which  I  feel 
myself  compelled  by  the  provisions  of  law  bearing  upon  this  case,  to 
arrive,  in  my  opinion  will  be  better  for  the  interest  of  the  bill  holders 
and  creditors  of  the  bank  than  would  be  the   usually  disastrous  mea- 
sure of  appointing  receivers.     It  must  be  apparent   that  in  the  pre- 
sent condition  of  the  country   such  a  measure  must   result   in  great 
losses,  and  that  heavy   expenses  must  be   incurred,  and  if  by   such 
means  the  resources  of  the  bank  should  be  found  insufficient  to  pay 
its  liabilities,  the  loss  must  fall   upon  it?  creditors.     The  entire  re- 
sources of  the  bank  have  been  thus  far  applied  to  the  payment  and  se- 
curity of  its  debts  and  the  officers  of  the  bank  in  their  answers  state  their 
intention  to  continue  so  to  do.     The  aggregate  amount  of  the  indebt- 
edness of  the  directors  is  small.     No  part  of  the  resources  of  the 
bank  have  been  diverted  to  pay  dividends,  and  I  can  perceive  nothing 
in  the  case  as  presented  before  me,  to  lead  to  the  belief  that  the  af- 
fairs of  this  institution  have  not  been  honestly  and  in  good  faith  ad- 
ministered.    But  these  remarks  which  would  apply  properly  in  a  case 
for  the  exercise  of  discretion  in  the  appointment  of  a  receiver,  are 
perhaps  unnecessary  in  the  present  case  ;  as  from  the  view  1  have 
taken  of  the  law  bearing  upon  it  and  from  which  I  cannot  escape, 
there  is  no  room  for  the  exercise  of  this  discretion  in  the  case.     The 
law  being  positive,  the  rights  of  the  defendants  are  fixed,  and  the  du- 
ty imposed  upon  the  court  imperative.     A  question  has  been  inciden- 
VoL.  I.  43 


328  CASES  IN  CHANCERY. 

First  Circuit  ^^\[y  raised  as  to  the  construction  of  the  sixth  section  of  the  suspen- 

Attorney   ^^^'^  ^^^  (4)  hut  as  it  is  not  necessary  to  the  decision  of  the  case,  I 

Ds.   ■    have  had  some  doubt  as  to  the  propriety  or  necessity  of  expressing 

Bank  of  .     .  .  _^ 

Miciiigun.  an  opinion  upon  it.  Ihe  lacts  do  not  appear  as  to  when  this  bank 
filed  its  statement  of  the  condition  of  its  affairs.  The  question  is, 
^  are  the  banks  compelled  to  transmit  a  statement  of  their  condition 
on  the  first  days  of  January,  April,  July  and  October,  or  are  they  to 
transmit  a  statement  of  the  condition  iheytcere  in  on  those  days  as  soon  as 
thesame  can  thereafter  be  made  out  and  stated?  It  would  of  course  be 
impossible  to  ascertain  their  condition  on  a  particular  day  and  make 
and  transmit  a  statement  on  the  same  day.  if  tlie  statement  is  to  be 
transmitted  on  those  days,  it  must  be  of  their  condition  on  some  pre- 
vious  day,  and  each  bank  must  be  left  to  select  its  own  day.  This 
would  certainly  open  the  door  for  transfers  from  one  to  the  other, 
and  might  lead  to  inconveniences  which  the  legislature  intended  to 
guard  against  by  requiring  a  simultaneous  statement  of  the  condition 
of  all  the  banks  on  the  same  day.  Some  of  the  banks  contemplated 
by  the  terms  of  the  act  are  situate  some  one  hundred  and  fifty 
miles  distant  from  the  office  of  the  Secretary  of  State.  Are  tiiose 
banks  required  to  file  on  that  day  a  statement  of  their  condition,  or 
on  some  indefinite  previous  day  of  their  own  election,  or  must  they 
"  transmit"  by  mailing  their  statement  on  that  day,  or  was  it  the  in- 
tention of  the  legislature  that  they  should  transmit  a  statement  of 
their  condition  on  the  particular  days  indicated  by  the  act?  The 
statute  requires  that  the  statement  of  the  condition  of  the  banks 
shall  be  made  under  oath  of  the  president,  cashier  and  a  majority  of 
the  directors.  Should  this  be  impossible  from  the  absence  or  sick- 
ness of  the  president  or  cashier,  or  a  portion  of  the  directors,  must 
the  statement  be  actually  transmitted  on  this  particular  day  under 
pain  of  a  forfeiture  ?  The  language  and  object  of  the  act,  the  se- 
curity intended  to  be  afforded  to  the  public,  the  inconvenience  if  not 
impossibility  of  otherwise  conforming  to  its  terms,  all  concur  in  lead- 
ing to  the  construction  that  the  statements  shall  show  the  condition 
of  all  the  banks  under  the  suspension  law  at  one  and  the  same  pe- 
riod of  time  ;  and  that  their  statements  shall  be  filed  as  soon  as  they 
can  properly  be  prepared  and  examined  by  the  different  officers  re- 
quired to  make  oath  to  the  truth  of  the  statements  of  their  condition 


CASES  IN  CHANCERY.  329 

on  those  days.  Where  no  time  is  prescribed  in  which  an  act  is  to  First  circuit 
be  done,  it  must  be  done  in  a  reasonable  time,  and  this  must  be  de-  Anompy 
termined  by  the  tribunal  before  which  the  question  may  be  made. —  '^'17.''' 
9  Pickering  404;  Coke  Lilt.  208.  But  if  the  construction  should  be  Miciiigan. 
otherwise,  1  do  not  perceive  how  a  failure  to  conform  to  this  section 
on  the  particular  days  mentioned  can  be  held  ipso  facto  to  work  a 
forfeiture.  The  rights  and  immunities  conferred  upon  this  bank  by 
the  first  section  of  the  suspension  act  are  positive  and  unconditional. 
The  fifth  section  provides,  that  a  failure  to  conform  to  the  provisions 
of  that  section  shall  work  a  forfeiture.  The  sixth  section  is  directo- 
ry  and  imposes  no  penalty  or  forfeiture.  The  consequence  of  a 
failure  to  conform  to  the  requirements  contained  in  that  section,  there- 
fore would  subject  the  delinquent  bank  to  be  pioceeded  against  under 
the  provisions  of  the  tenth  section  of  the  act,  and  the  failure  to 
conform  to  the  provisions  of  the  act  must  be  averred  and  shown. — 
The  bill  as  before  stated  contains  no  such  averment,  and  as  the  ques- 
tion is  not  necessarily  involved  in  the  decision  of  this  motion,  I  should 
not  have  deemed  it  necessary  to  express  an  opinion  upon  it,  but  from 
the  consideration  that  the  views  I  have  taken  of  the  law  must  be  con- 
clusive upon  the  principal  object  of  the  bill,  the  complainant,  if  any 
doubt  is  entertained  of  the  correctness  of  the  conclusion  arrived  at, 
may  be  disposed  to  take  an  appeal  to  the  Supreme  Court;  and  in  tha^ 
case  it  will  be  desirable  that  this  question  as  well  as  the  others  should 
be  presented  and  settled  in  the  appellate  court. 

Having  now  said  all  that  can  be  material  to  a  decision  of  the  ques- 
tion presented,  it  would  have  been  certainly  gratifying  if  consistent 
with  my  views  of  duty  here  to  pause.  But  with  the  hope  that  it  may 
not  be  without  its  utility  hereafter,  I  think  it  my  duty  to  refer  to  the 
unusual  and  extraordinary  course  which  has  been  pursued  during  the 
pendency  of  this  controversy,  having  a  tendency  to  create  excitement 
and  preoccupy  public  opinion.  Minatory  articles  have  from  time  to 
time  appeared  in  the  public  papers.  The  consequences  of  failing  to 
yield  to  this  artificial  excitement  have  been  shadowed  forth.  Various 
interests  and  considerations  very  far  from  being  properly  connected 
with  any  question  of  legal  right  involved  in  the  cause,  have  been  en- 
listed.    A  detailed    recital  of  the  circumstances   referred  to,  is  not 


330  CASES  IN  CHANCERY. 

First  Circuit,  jggf^gj  necessary  and  would  aiford  no  pleasure.     It  would  have  been 
Atiorney    ©asy  to  have  acquired  cheap  temporary  applause  by  yielding  to  the 
^^"fJ"^'    current.     But  the  court  has  a  higher  duty  to  perform.     It  is  bound 
Michigan,  to  declare  the  law  as  it  is,  and  to  vouchsafe  to  every  one  his  rights 
under  the  law  without  regard  to  consequences.     Whenever  the  rights 
of  litigant  parties  shall  be  surrendered  to  any  such  extraneous  in- 
fluences there  is  an  end  of  all  security  and  of  all  confidence. 

This  is  the  first  time  I  have  had  occasion  to  recur  to  improprieties 
of  this  character.  It  is  painful  to  do  so  now,  I  trust  it  may  never 
again  be  necessary. 

The  result  is,  that  the  motion  for  the  appointment  of  receivers 
must  be  denied.  A  motion  was  submitted  at  the  same  time  for  a  mo- 
dification of  the  injunction,  but  as  the  Attorney  General  expresses 
his  election  that  it  the  motion  for  the  appointment  of  receivers  is 
denied,  that  the  injunction  should  be  dissolved,  and  as  from  the  views 
expressed,  such  must  be  the  final  result ;  the  order  will  be  entered  ac- 
cordingly, except  so  far  as  relates  to  the  assigned  assets.  That  pre- 
sents a  distinct  question  which  has  not  been  considered,  and  the  in- 
junction will  be  so  far  retained  until  the  further  order  of  the  court. 

rfote.  (1.)  See  "  An  act  to  provide  for  proceedings  in  Chancery  against  corporations,  and  for 
other  purposes."     Approved  June  21,  1S37.    Laws  of  18:37,  pase  306. 

Ci.)  See  act  No,  58  enii'.leil  '•  An  act  suspending  certain  provisions  of  law  and  for  other  pur- 
poses "  approved  April  1-2,  lf-41.     Laws  of  1841,  paiic  141. 

{30'  See  Sec  Jiarrmm  vs.  the  Bank  of  Fonlinr,  ante  IKi.  .lanuary  17,  1842,  llie  act  enlilled 
■'  An  act  to  repeal  ilie  suspension  act,  passed  April  12,  1<11  and  for  other  purposes,  "  was  pas- 
sed and  is  as  follows  : 

An  Act  to  repeal  the  Suspension  Act,  passed  April  12,  1841,  and  for 

other  purposes. 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  State  of  Michigan,  That  the  act  entitled  "an  act  suspen- 
ding certain  provisions  of  law,  and  for  other  purposes,  passed  April 
12,  1841,"  be  and  the  same  is  hereby  repealed. 

Sec.  2.  All  banking  institutions  of  this  state  shall,  immediately  af- 
ter the  passage  of  this  act,  and  at  all  times  thereafter,  pay  specie  for 
their  bills  obligatory  and  of  credit,  and  all  bills  and  notes  issued  by 
said  banks,  on  presentation  and  demand  of  the  same  at  their  counters, 
during  the  usual  banking  hours  ;  and  every  failure  or  refusal  so  to  do 
shall  be  deemed  coRclusive  evidence  of  insolvency. 

Sec.  3.  Any  of  the  banks  of  this  state  that  shall  fail  to  resume  and 
continue  to  make  specie  payments,  immediately  after  the  passage  of 
this  act,  for  all  their  liabilities  on  demand,  shall  be  deemed  insolvents 


CASES  IN  CHANCERY.  3ni 

nnd  their  charters  and  all  their  corporate  privileges  shall  he  forfeited  ;  ^''■*'  ^'r'"" 
and  if  any  such  bank  shall  sell,  or  in  any  manner  dispose  of  any  of    ^„^^,„. 
its  specie  or  other  property  of  any  description  whatever,  such  act  shall     t;cnerui 
be  deemed  fraudulent  and  void,  and  the   President,  Cashier,  or  other   j^^"}jf ''[ 
officer,  aiding  in,  or  assenting  to  such  sale  or  other  disposition  of  said 
money  or  property  shall  be  deemed  guilty  of  felony,  and  shall  be  pun- 
ished by  imprisonment  for  not  less  than  one  nor  more  than  five  years, 
at  the  discretion  of  the  court. 

Sec.  4.  Any  bank  or  banks  resuming  specie  payments  in  pursu- 
ance of  the  foregoing  provisions  shall  continue  to  pay  specie  for  all 
their  bills  and  liabilities  for  six  months  before  any  dividends  of  the 
profits  of  such  institutions  shall  be  made  ;  nor  shall  the  oflicers  of 
said  banks,  nor  any  of  them,  dispose  of  any  of.  their  specie  for  any 
other  property,  except  for  legitimate  banking  purposes,  and  any  per- 
son or  persons  so  offending  shall  be  deemed  guilty  of  a  felony,  and 
may,  upon  conviction  thereof  before  any  court  of  competent  jurisdic- 
tion, be  sentenced  to  imprisonment  in  the  State  Prison  for  a  term  not 
exceeding  five  years,  or  in  the  county  jail  not  more  than  one  year,  at 
the  discretion  of  the  court ;  and  the  Prosecuting  Attorney  of  any 
county  where  any  bank  may  be  situated  whose  officer  shall  violate 
the  foregoing  provisions  shall  cause  the  offenders  to  be  prosecuted  for 
such  offence,  and  every  and  all  such  dividends  or  disposals  shall  be 
deemed  fraudulent  and  void. 

Sec.  5.  In  all  cases  where  suits  have  been,  or  may  hereafter  be 
instituted  by  any  bank  or  monied  corporation  for  the  collection  of 
any  debt,  which  may  be  due  to  said  bank  or  corporation,  in  whatever 
name  such  suit  was  instituted,  or  suits  may  be  instituted,  it  shall  be 
competent  for  the  defendant  to  set  off  the  notes  of  such  bank  or  cor- 
poration ill  discharge  of  the  liability  for  which  said  suit  was  instituted. 

Sec.  6.  This  act  shall  take  effect  and  be  in  force  from  and  after  its 

passage. 

Approved  January  17,  184'2. 

Noic  4.— 

Sec.  6.  Every  such  bank  or  branch,  shall  transmit  a  statement,  un- 
der oath  of  its  president,  cashier,  and  a  majority  of  the  directors,  of 
its  true  condition,  once  to  every  three  months,  viz  :  On  the  first  day 
of  January,  April.  July  and  October,  to  the  Secretary  of  State,  who 
shall  cause  the  same  to  be  published  in  the  state  paper,  and  the  expense 
of  such  publication  shall  be  paid  by  the  banks  respectively. 


.132  CASES  IN  CHANCERY 


First  Circuit 


Calvin  Graves  and  others,  vs.  Johnson  Niles  and  others. 


Graves.      jj-  material  facts  have  occurred  subsequent  lo  (lie  eoinmencement  of  the  suit  the  court  will  give 
vs. 
jViles.  the  complainant  leave  to  file  a  supplemental  hill,  and  where  such  leave  is  given  the  court  will 

permitoUicr  matters  lobe  inlroiluceJ  into  the  supplemental  hill,  which  might    have  been   in- 

corporaieJ  in  the  original  by  way  of  amendment,  and  this   is  especially  proper,  where  the 

matter  which  occurred  prior  is  necessary  to  the  proper  elucidation  of  that  which  occurred 

subsequent  to  the  tiling  of  tlie  original  bill.  • 

An  application  to  file  a  supplemental  or  amended  answer  is  seldom  granted,  and  never  without 
the  utmostcaution,  and  when  a  just  and  necessary  case  is  clearly  made  out,  and  it  is  then  gen  - 
erally  confined  to  a  clear  case  of  mistake,  as  to  matter  of  fact,  and  as  lo  that  only,  and  the 
Courtis  still  more  caulious  in  granting  such  an  application  after  a  considerable  lapse  of  lime 
from  the  filing  of  the  bill  or  original  answer  in  the  case. 

AVhere  a  motion  was  made  to  file  a  supplemental  or  amended  answer  in  which  it  was  propos- 
ed to  take  entirely  new  ground,  and  change  entirely  the  character  of  the  defence,  and  this  not 
upon  the  ground  of  any  actual  mistake  in  a  matter  of  fact  or  upon  any  discovery  of  new 
facts,  but  upon  the  ground  that  the  defendant  did  not  mean  lo  be  understood  to  state  as  he  hail 
stated  in  his  answer,  the  court  denied  the  motion. 

But  where  there  was  doubt  in  regard  to  the  proi)er  application  of  certain  moneys  admitted  to 
have  been  received  by  the  defendant,  and  the  answer  was  obscure,  and  there  was  a 
possibility  that  great  injustice  might  be  done  to  the  defendant,  the  court  granted  an  order  with 
reluctance,  permuting  a  separate  supplemental  answer  to  be  filed,  as  to  this  particular,  and  ex- 
plaining this  ambiguity. 

Where  a  defendant  had  leave  to  file  a  supplemental  answer  to  explain  certain  ambiguities  in  his 
original  answer,  and  he  incorporated  other  matters  of  defence  in  his  supplemental  answer 
on  motion  of  the  complainant,  the  supplemental  answer  was  ordered  to  betaken  oft"  me  files. 

This  was  a  demurrer  to  a  supplemental  bill  filed  by  leave  of  the  cour  t. 
A.  D.  Frasepv  in  support  of  the  demurrer. 

1.  That  tlie  bill  is  exceptionable  on  the  ground  that  the  complain- 
ants have  incorporated  in  it  as  well  matter,  which  occurred  previous 
to  the  filing  of  the  original  bill,  and  which  might  be  introduced  by 
amendinent,  as  things  which  occurred  subsequent  to  the  filing  of  the 
original  bill,  by  way  of  supplement.  1  Paige  200,  3  Id,  294,  4  Id. 
127;  Mitfords  PL  165;  17  Vesey,  143. 

2.  That  the  new  matters  introduced  are  not  material  and  neces- 
sary to  the  complainants  in  the  prosecution  of  this  cause.  17  Veseij 
143  ;   1  Smiths  Pr.  204. 

D.  Goodwin,  Contra. 

The  demurrer  in  this  case  should  be  overruled  as  frivilous  : 


CASES  IN  CriAXCERT.  333 

1.  Leave  was  granted  to  file  this  identical  bill.     Such  is  the  order,  F'"t»-''rcuit 
and  it  cannot  be  otherwise  construed.     The  whole  proceedings  were     oruves. 
one  act,  to  wit :     The  leave,  the  filing  and  the   granting  ihe   injunc-      ly^^cg. 
tion.     And  if  there  were  ambiguity,  the  court  knew  the   facts,   and 

would  so  construe  it,  and  would  do  so  even  if  there   were  a   clerical 
mistake  in  the  entry. 

2.  In  the  supplemental  bill,  which  contains  new  matters,  after  the 
filing  the  original  bill,  other  facts  previously  existing  may  be  intro- 
duced in  connection  with  the  new  matter.  Such  is  the  general  prac- 
tice. No  case  has  been  or  can  be  shown  to  the  contrary.  The  case 
cited  of  Stafford  et  al  vs.  Howlelt  el  al.  1  Paige  200,  is  with  us. 
The  Chancellor  says  :  "  If  it  appears  upon  the  face  of  the  supple- 
"  mental  bill  that  the  loliole  of  the  matters  charged  therein  arose  pre- 
"vioustothe  commencement  of  the  suit,  and  that  the  situation  of 
"  the  cause  is  such  that  they  may  be  introduced  into  the  original  bill 
"  by  amendment  ;  the  defendants  may  demur.  " 

Tivo  things  must  concur  to  sustain  the  demurrer.  1st.  The  ichole 
of  the  matters  stated  must  have  existed  prior  to  the  commencement 
of  the  suit.  And  2nd.  The  situation  of  the  cause  must  be  such  that 
they  may  be  inserted  in  the  original  bill  by  amendment.  Letoellen 
vs.  Mackworth  2  Atkyns,A(i  ;  Baldwin  vs.  Mackoicn,  3  Atkyns,  817/ 
2  Mad.,  510  ;   Cooper  9  PI.  75. 

3.  The  matters  alleged  to  have  previously  existed,  are  merely  in- 
troductory to  and  explanatory  of  the  new  facts,  and  necessary  to  their 
understanding,  and  the  repetition  for  that  purpose  of  facts  stated  in 
the  answer. 

4.  This  demurrer  is  not,  by  the  Solicitors  in  the  cause.  Joy  «Sc 
Porter  are  the  original  Solicitors  for  defendant  Nilesof  record.  And 
there  has  been  no  order  for  a  change. 

The  Chancellor. — The  principal  ground  relied  on  in  support  of 
this  demurrer  is,  that  the  complainants  have  interposed  in  the  supple- 
mental bill,  matters  which  occurred  prior  to  the  filing  of  the  original 
bill.  The  supplemental  bill  in  this  ca^e  was  filed  by  leave  of  the 
court. 

The  matters  which  are  stated  in  the  supplemental  bill,  and  which 
occurred  prior  to  the  filing  of  the  original  bill,  are   to  some   extent 


334  CASES  IN  CHANCERY. 

First  Circuit  connected  with  those  matters  stated  as  having  occurred  subsequent  to 
Graves,  the  filing  of  the  bill  and  necessary  to  their  proper  explanation.  If 
ylics.  material  facts  have  occurred  subsequent  to  the  commencement  of  the 
suit,  the  court  will  give  the  complainants  leave[to  file  a  supplemental 
bill,  and  where  such  leave  is  given  the  court  will  permit  other  mat- 
ters to  be  introduced  into  the  supplemental  bill,  which  might  have  been 
incorporated  in  the  original,  by  way  of  amendment.  Stafford  et  al. 
vs  Howlett  ^  West,  1  Paige  200.  This  is  certainly  proper,  where 
the  matter  which  occurred  prior,  is  necessary  to  ihe.proper  elucida- 
tion of  that  which  occurred  subsequent  to  the  original  bill. 

This  bill  was  filed  in  pursuance  of  leave  granted,  and  under  this 
leave  it  was  competent  to  insert  the  allegations  contained  in  it.  The 
bill  in  other  respects  contains  sufficient  to  sustain  it  upon  general  de- 
murrer. 

Demurrer  overruled  with  leave  to  answer  on  the  usual  terms. 

After  the  answer  had  been  filed  a  motion  was  made  on  the  part  of 
the  defendant  for  leave  to  file  a  supplemental  or  amended  answer. 

A.  D.  Eraser  in  support  of  the  motion. 

*' Where  there  is  a  clear  mistake  in  an  answer  and  proper  to  be 
♦  corrected,  the  practice  is  to  permit  the  defendants  to  file  an  addition- 
*'  al  or  supplemental  answer.  "  4  John's  C.  R.  375  ;  8  Vesey,  79  ; 
10  Id.  284,  401;  21  Id.  150  and  note  ;  22  Id.  255  and  note;  1  Dick 
33,  35,  285  ;  2  TUck.  485  ;  2  Atk.  294  ;  1  Broron,  C.  C.  418. 

♦'  Where  a  party  has  omitted  to  lay  before  the  court,  as  he  ought, 
*'a  case,  admitting  a  mistake  and  desiring  leave  to  rectify  it,  thepro- 
"  per  course  is  to  put  in  an  explanatory  answer  upon  which  the 
♦'court  will  judge."     19  Vesey  584. 

Where  a  party  is  negligently  or  fraudulently  led  into  a  mistake 
the  court  will  permit  him  to  file  a  supplementary  or  additional  an- 
swer.    19  Vesey  628  ;  10  Vesey,  401. 

R.  Manning,  of  counsel  argued  this  motion  on  the  part  of  the 
complainants.     The  defendant's  motion  should  be  denied. 

1.  The  principal  facts  on  which  the  defendant  bases  his  application 
are  denied  by  the  affidavit  of  JVIr.  Porter. 

2.  Two  years  have  elapsed  since  the  defendant  filed  his  answer, 
and  he  shows  no  good  reason  why  he  has  not  applied  to  the  court  be- 


CASES  IN  CHANCERY.  335 

fore  for  what  lie  now  asks.  In  Curling  vs.    Marquis  Townshend,  19  ^''^'-  ^''■cu'i 
Ves.  623,  the  Lord  Chancellor  says,  "  I  dare  not  in  such  a  case,  let    Graves 
it  be  in  fact  what  it  may,  lay  down  a  principle,  that  could  form  a  pre-      ^^'^b. 
cedent  for  permitting  an  answer  after  the  lapse  of  two  years,  to  be  al- 
tered in  effect  from  one  end  to  the  other." 

3.  The  defendant  does  not  specifically  slate  in  his  affidavit  the 
whole  of  the  matter  he  wislies  to  place  upon  the  record  by  his  addi- 
tional or  supplemental  answer  as  he  should  have  done,  to  enable  the 
court  to  judge  of  the  reasonableness  of  his  application.  19  Veseij, 
631. 

4.  The  answer  of  the  defendant  is  clear  and  consistent  with  itself 
and  not  contradictor)-  in  any  of  its  material  parts.     But  in   connec- 
tion with  the  explanatory  matter  set  forth  in  the  defendant's  affidavit, 
it  would  be  vague,  uncertain  and  indefinite. 

5.  The  answer  and  explanatory  matter  taken  together,  show  the 
defendant  to  be  guilty  of  a  conspiracy  with  Turner  &  Collins  to  de- 
fraud Hatch,  Scrantom  &  Kimball. 

G.  In  cases  of  this  description,  when  the  granting  of  the  motion 
will  operate  to  the  prejudice  of  the  complainant,  the  court  will  deny 
the  application,  unless  under  very  peculiar  circumstances,  and  where 
the  defendant  makes  out  a  strong  case.  Wells\s.  WoodlO  Fes.  401; 
Boieen  vs.  Cross,  4  J.  C.  R.  375  ;  Greemoood  vs.  Atkinson,  4  Si- 
mons, 54;   Curling  \s.  Marquis  Townshend,  19  Fes.  628. 

The  Chancellor. — This  is  an  application  seldom  granted  and  ne- 
ver witl\i3ut  the  utmost  caution,  and  when  a  just  and  necessary  case 
is  clearly  made  out. 

In  the  case  of  Boicen  vs.  Cross,  4  Johnson's  Ch.  Rep.  375,  an 
amended  answer  as  to  a  clear  case  of  mistake,  as  to  matter  of  fact, 
and  as  to  that  only  was  permitted. 

LordEldon,  in  the  case  of  Curling  vs.  the  Marquis  of  Townshend, 
says^'  it  would  be  very  difficult  even  upon  negligence  unless  the  par- 
ity was  led  into  it,  to  have  the  records  of  the  court  altered,  and  I 
"dare  not  in  such  a  case,  let  it  be  in  fact  what  it  may,  lay  down  a 
"  principle  that  would  be  a  precedent  for  permitting  an  answer  after 
"  a  lapse  of  two  years,  to  be  altered  in  effect,  from  one  end  to  the 
''  other.  "     And  he  further  says,  although  he  has  been  said  to  have 

Vol.  I.  43 


ySG  CASES  IN  CHANCERY. 

First  Circuit  ^een  too  liable  to  hesitation,  and  doubt  in  his  decisions  :    "  I  should 
Graves.      "  ^6  sori'y  to  be  thought  to  have  much  doubt  upon  a  point  of  so  much 
NUes.       '*  importance.  " 

What  is  the  case  here  ?  In  the  fifth  folio  of  his  answer  the  defen- 
dant says  that  in  July,  1836,  he,  together  with  Turner  and  Collins, 
the  two  partners  in  these  transactions  met  together  in  Detroit,  and 
that  the  said  Collins  then  and  there  sold  his  interest  in  all  the  said  par- 
cels of  land  above  described,  and  in  the  joint  funds*  in  the  hands  of 
this  defendant,  as  he  then  informed  this  defendant,  to  one  A.  W. 
Hatch  either  for  the  benefit  of  said  Hatch  or  for,  and  on  account  of 
Henry  Scrantom,  and  D.  F.  Kimball  of  Buffalo,  for  whom  said  Hatch 
was  agent,  and  goes  on  to  state  the  mode  of  payment. 

Again  in  the  tenth  folio  he  states  that  having  been  informed  and  be- 
lieving that  said  Collins  had  sold  all  his  interest  in  said  property,  and 
investment  to  said  Hatch  or  Scrantom  &  Kimball,  &c.  He  also  denies 
all  further  interest  of  said  Collins  or  his  assignees  in  the  investment 
thereinafter  mentioned. 

It  is  now  sought  by  the  proposed  amendment  or  supplemental  an- 
swer to  take  entirely  new  ground  and  change  entirely  the  character 
of  the  defence,  and  this  not  upon  the  ground  of  any  actual  mistake 
in  a  matter  of  fact,  or  upon  any  discovery  of  new  facts,  but  upon  the 
ground  that  he  did  not  mean  to  be  so  understood,  and  "  he  intended 
"  merely  to  state  that  said  Collins  had  no  avowed  interest  in  said  in- 
"  vestment  and  purchases,  as  it  was  understood  between  said  Tur- 
"  ner  and  Collins,  that  said  Turner  should  take  the  interest  of  said 
"  Collins,  but  upon  what  secret  trust  or  qualification  in  favor  of  said 
♦'  Collins,  this  defendant  is  unable  to  set  forth.  " 

This  is  not  very  distinctly  stated,  and  perhaps  as  to  thispart  of  the 
amendment  sought  to  be  made,  this  would  be  a  sufficient  answer. 

But  I  am  disposed  to  place  it  upon  other  grounds.  It  is  entirely  in- 
consistent with  the  version  given  in  the  original  answer.  There  is 
no  mistake  of  any  facts  tihown,  nor  any  new  discovery  suggested. 

From  the  affidavit  of  Mr.  Porter  the  answer  seems  to  have  been 
examined  by  this  defendant^  before  it  was  engrossed  as  well  as  after- 
wards, at  least  with  usual  care  and  attention ;  and  although  this  de- 
fendant may  possibly  have  been  so  unfortunate  as  to  have  entirely 
misapprehended  the  purport  of  the  answer  in  this  respect,  yet  regar- 


I 


CASES  IN  CHANCERY.  337 

ding  the  general  interests  and  rights  of  suitors,  and  the  proper  admin-  f^s' circuit. 

istration  of  justice,  it  would  be  establishing  a  precedent   of  the  most    Qf^ves. 

dangerous  tendency,  after  the  lapse  of  two  years  and  after   the  cir-     xiies. 

cumstances  and  the  property   may  have  changed,  to  permit   such  a 

change  of  the  record  when  it  may  so  materially  affect  the  rights  of 

the  complainants. 

The  new  aspect  sought  to  be  given  to   the  defence   strikes  me  as 

somewhat  unfair  toward  the  vendees  of  Collins,  on  the   part  both  of 

Niles  and  Turner  ;  and  the  application  may  not  on  that  account  ac- 
quire any  additional  claim  to  a  favorable  consideration. 

There  is  one  portion  of  the  amendment  sought  to  be  made   which, 
however  has  pressed  more  strongly  upon  me.     The  defendant  admits 
the  receipt  of  $4,995 — on  account  of,   and  in  full  for  the  proceeds  of 
Hatch's  note  indorsed  by  Scrantom  &  Kimball,  and  confesses  himself 
liable  and  ready  to  account  to  any  person  or  persons  entitled  thereto, 
under  the  decree  of  this  court.  It  is  very  possible  that  it  may  turn  out 
that  the  defendant  was  entitled  to  apply  this  money  to  the  purposes  for 
which  this  association  was  formed,  either  in   liquidating  liabilities  al- 
ready incurred,  or  in  improving  the  property  according  to  the  origin- 
al agreement,  and  if  it  has  been  so  applied,  if  the  vendees  of  Collins 
should  be  entitled  to  his  proportion  of  this  investment  it  would  be  un- 
just to  hold  him  also  to  account  for  the  money,  under  this  equivocal 
expression  in  the  answer. 

But  if  it  has  been  properly  and  lawfully  expended  upon  the  prop- 
erty to  a  portion  of  which  these  vendees  may  be  entitled,  it  does  not 
strike  me  that  this  defendant  would  be  estopped  by  expressing  his 
readiness  to  account  for  it  to  any  persons  entitled  thereto  under  the 
decree  of  this  court. 

But  as  it  is  possible  that  great  injustice  may  be  done  to  this  defen- 
dant in  this  respect,  and  as  he  now  swears  that  he  meant  no  more  by 
this  expression  than  tojexpress  his  readiness  to  account  for  the  man- 
ner of  his  expenditure  upon  the  joint  property  under  the  agreement ; 
and  as  there  is  a  supplemental  bill  to  be  answered,  so  that  the  com- 
plainants will  not  be  delayed  thereby,  I  am  disposed,  but  with  some 
reluctance  to  permit  a  supplemental  answer  to  be  filed,  as  to  this 
particular,  and  explaining  this  ambiguity,  but  limiting  it  to  this  only  ; 


338  CASES  IN  CHANCERY. 

First  Circuit.  ^,^J  ^q  ^j^jg  extent  we  are  perhaps  sustained  by  the  case  of  Livesey  vs. 
Graves.     Willson,  1  Fese?/  ^  Beames,  149. 

Niies.  The  original  answer  will  remain  on  file  unchanged  and  the  effect 

to  be  given  to  either  the  one  or  the  other,  must  be  reserved  until  the 
explanation  is  before  the  court. 

Whereupon  the  following  order  was  entered  : 

« 

"Ordered,  that  leave  be  granted  to  said  Niles  io  file  a  supplemen- 
tal answer  in  explanation  of  that  part  of  his  answer  now  on  file, 
which  confesses  and  acknowledges  his  liability  and  readiness  to  ac- 
count for  the  sum  of  $4,995  to  any  person  or  persons  entitled  there- 
to, under  the  decree  of  this  court,  but  that  in  accounting  for  the  whole 
or  any  part  of  said  money  by  said  supplemental  answer,  he  be  re- 
stricted to  showing  an  application  of  the  money  to  the  purposes  for 
which  the  association  between  himself,  Collins  and  Turner  was  form- 
ed, either  in  liquidating  liabilities  already  incurred  at  the  time  he  al- 
leges Collins  sold  out  his  interest  to  Hatch,  or  in  improving  the  pro- 
perty according  to  the  original  agreement  that  had  at  that  time  been 
purchased  for  the  association,  and  the  efiect  to  be  given  to  either  the 
original  or  supplemental  answer,  is  reserved,  until  such  supplemen- 
tal answer  is  before  the  court.  " 

A  supplemental  answer  having  been  filed  under  this  order,  explain- 
ing the  ambiguities  contained  in  the  original  answer,  and  incorpora- 
ting other  matters  of  defence  ;  the  complainants  moved  to  take  the 
supplemental  answer  off  the  files  and  upon  this  motion,  the  follow 
ing  opinion  was  delivered. 

The  Chancellor. — The  grounds  of  the  order  permitting  this  sup- 
plemental answer  to  be  filed,  seem  to  me  to  have  been  distinctly  sta- 
ted. 

The  propriety  of  that  order  is  not  now  under  discussion,  but  from 
farther  reflection  and  without  reference  to  this  particular  case,  I  am 
satisfied  that  a  departure  from  the  rule  there  established,  would  open 
a  wide  door  for  fraud,  and  afford  strong  temptations  to  perjury  ;  its 
inconveniences  and  dangers  are  obvious. 

But  the  question  now  presented  is,  does  the  answer  go  beyond  the 
order?     It  manifestly  does  so.     The  order  was  limited  to  the  explana- 


CASES  IN  CHANCERY.  339 

tion  of  the  manner  of  the  expenditure  of  the  84,995.     This  answer  rirsi  circuit, 
attempts  to  do  inferentially,  if  not  directly  what  is  expressly  said  it  is    (Graves, 
incompetent  to  do  ;  to  change  entirely  the  attitude  assumed  in  the  for-      ^i'^^ 
mer  answer.     It  purports  not  only  to  show  the  expenditure  of  upwards 
of  $10,000,  but  to  show  that  this  was  done  on  account  of,  and  with 
the  concurrence  of  those  whose  interest  is  denied  in  the  first  answer. 
I  am  unwilling  to  deprive  the  defendant  of  the  benefit  of  the  first 
order.     It  is  impossible,  by  expunging  a  portion  of  this  to  leave  the 
answer  intelligible,  and  1  see  no  other  mode  of  correcting  the  error  but 
to  grant  the  motion  to  take  the  answer  from  the  file,  with  leave  to  file 
a  supplemental  answer  in  twenty  days  in  conformity  with  the  direc- 
tions given  in  the  former  order. 


340  CASES  IN  CHANCERY 


Silas  TopLiPFfs.  Albert  L.  Vail  and  others. 

j,g.    ■      As  between  bona  fide  creditors  of  a  previous  firm  and  the  separate  creditors  of  a  partner  who 
Vail.  continued  tlie  business  and  was  the  sole  visible  owner  of  the  property,  employed  in  trade, 

and  where  the  separate  creditors  had  given  credit,  relying  on  the  properly  employed  in  trade 
for  payment,  such  creditors  should  be  preferred  to  the  creditois  of  tlie  previous  firm. 

The  creditors  of  a  partnership  have  a  right  to  payment  out  of  the  partnership  effects  in  prefer- 
ence to  the  creditors  of  an  individual  partner. 

In  the  absence  of  any  agreement  to  the  contrary, it  is  fair  to  presume  that  a  retiring  partner  does 
not  intend  that  the  partnership  property  shall  be  used  for  the  individual  benefit  of  a  partner 
who  continues  the  business,  leaving  the  debts  in  the  firm  unpaid  ;  and  this  was  held  to  be  th  e 
presumption  where  the  retiring  partner  transferred  the  partnership  effects  to  a  partner  contin- 
uing the  business,  who  agreed  to  pay  the  partnership  debts  and  gave  bond  to  that  effect. 

The  bill  m  this  case  states  that  the  complainant,  and  defendant 
Albert  L.  Vail,  being  copartners  June  25,  1840,  dissolved.  That 
the  complainant  sold  out  his  interest  in  the  copartnership  property  to 
said  Vail,  and  received  from  Vail  his  pay  therefor,  and  that  Vail  at 
the  same  time  executed  to  the  complainant  a  bond  in  the  penal  sum  of 
$5,000,  conditioned  that  said  Vail  should  pay  all  the  partnership  debts. 
Alleges  that  Vail  has  since  fraudulently  transferred  the  partnership 
effects  for  the  purpose  of  preventing  their  application  to  the  payment 
of  the  partnership  debts  ;  that  Vail  had  absconded,  &c.  Bill  prays  that 
the  partnership  property  be  applied  to  the  payment  of  the  partner- 
ship debts  for  which  the  complainant  is  liable. 

Upon  this  showing  an  injunction  was  granted,  and  the  defendants 
moved  to  dissolve  the  injunction  for  want  of  equity  in  the  bill. 

R.  Manning,  In  support  of  the  motion, 

The  sale  changed  the  copartnership  property  into  the  individual 
property  of  Vail.  It  was  no  longer  the  property  of  the  copartner- 
ship, but  the  property  of  Vail  who  had  purchased  out  the  interest  of 
his  copartner.  Exparte  Ruffin6  Ves.  119.  Exparte  Fell  10  Ves. 
347,  Exparte  Williams,  11  Ves.  3. 

This  is  a  case  of  one  copartner  selling  his  interest  in  the  firm  to 
another  who  is  to  continue  the  business  on  his  own  account.  It  is 
not  a  dissolution  of  the  copartnership  and  a  placing  of  its  effects  in 
the  hands  of  one  of  the  copartners  to  pay  the  debts  and  wind  up  the 


CASES  IN  CHANCERY.  :541 

business  ;  when  that  is  the  case,  the  ownership   of  the  property  is  f''"''*  Circuii 
not  changed,  but  what  was  copartnership  property  at  the  dissolution     'j.(,,,ijfl-. 
continues  to  be  such  until  it  is  used  to  pay  the  debts  or  a  division  of  it       vuii 
is  made.     The  individual  left  in  possession  of  it  holds  it  in  trust  for 
that  purpose.     The  case  of  Deveau  vs.  Fowler,  2  Paige  400,  is  a 
case  of  this  description.     On  no  other  principle  can  it  be  reconciled 
with  the  cases  in  Vesey.     The  cases  we  have  cited  were  not  decided 
by  Lord  Eldon  on  any  principle  of  law  peculiar  to  the  Bankrupt  law 
of  England. 

The  facts  in  the  case  of  Deveau  vs.  Fowler  are  not  fully  stated 
by  the  reporter.  It  appears  from  the  case  that  '-on  dissolution  of  the 
copartnership  it  was  agreed  that  the  defendant  should  take  all  the 
stock  and  effects,  and  pay  off  all  the  debts  due  by  the  firm,  and  in- 
demnify the  complainant  against  the  same."  It  does  not  appear  in 
that  case  as  in  this,  that  the  complainant  received  any  thing  for  his 
interest  in  the  copartnership  effects,  or  that  he  took  a  bond  from  the 
defendant  for  the  payment  of  the  copartnership  debts,  or  that  the  co- 
partnership properly  was  left  with  the  defendant  with  a  view  to  his 
continuance  of  the  business.  The  only  inference  to  be  drawn  from 
the  case  is,  it  would  seem,  that  the  defendant  was  to  pay  the  debts 
with  the  copartnership  effects,  which  were  to  be  used  for  that  pur- 
pose and  no  other.  This  appears  to  have  been  the  light  in  which 
Chancellor  Walworth  viewed  the  facts  in  that  case,  for  he  says  : — 
"The  fair  presumption  in  the  absence  of  any  express  agreement  to 
the  contrary,  therefore,  is,  that  it  was  not  the  intention  of  the  com- 
plainant that  the  effects  assigned  to  the  defendant  should  be  appro- 
priated to  the  private  use  of  the  latter,  leaving  the  debts  of  the  firm 
unpaid." 

"See  also  Collyer  on  Partnership  91  ;  Id  504=  io  509. 

Baker  &  Millard  contra. 

It  is  alleged  as  the  ground  of  this  motion,  that  the  sale  by  Topliff 
to  Vail  converted  the  partnership  property  into  individual  property, 
and  that  thereafter  the  complainant  had  no  lien  or  equity  to  demand 
that  the  property  should  be  appropriated  to  the  payment  of  partner- 
ship debts. 

We  think  it  clear  that  such  was  not  the  effect  of  the  transaction. 


-342  CASES  IN  CHANCERY. 

Fifth  Circuit      rpj^g  ^jjj  ^^^^Q^  he  sold  and  assigned  the  partnership  effects.     But 
Topiifl-.    this  was  upon  the  agreement  of  Vail  to  pay  the  debts  of  the  part- 
Aaii       nership.     This  was  an  entire  transaction. 

Vail  was  to  lake  the  property   and  pay  the  debts,  and  any  surplus 
that  might  remain  was  to  belong  to  him. 

Toplitr  received  no  security  for  the  payment  of  the  debts,  and  his 
'      indemnity  against  them,  except   the  agreement  and  individual  res- 
ponsibility of  Vail,  which  agreement  was  a  cdndition  of  the  sale.     All 
that  Vail  would  be  entitled  to  under  this  arrangement  would  be  the 
surplus  after  paying  the  debts  of  the  firm. 

The  cases  cited  in  support  of  the  motion  Exparte  Rufn,  Exparte 
Fell,  Exparte  Williams,  Sfc,  are  none  of  them  like  this.  They  are 
all  Bankruptcy  cases,  where  the  question  arose  not  between  the  part- 
ners, but  between  the  joint  creditors  of  the  partners,  and  the  separ- 
ate creditors  of  the  Bankrupt  partner.  In  Ruffin's  case  (and  all 
the  others  are  similar)  one  of  the  partners  sold  out  to  the  other  and 
retired  from  the  business — the  latter  agreeing  to  pay  the  debts,  &c. 
The  purchasing  partner  continued  the  trade  for  a  year  and  a  half, 
and  then  became  bankrupt.  The  joint  creditors  presented  a  petition 
praying  that  the  partnership  effects  remaining  in  specie  might  be  ap- 
•  propriated  to  the  payment  of  the  partnership  debts  in  preference  to 
the  separate  creditors  of  the  bankrupt.  Ab  between  them  the  ques- 
tion was  materially  different  from  the  question  between  the  parties 
to  this  suit. 

In  the  first  place  there  was  no  pretence  o?  fraud  or  bad  faith  in 
that  case,  in  any  quarter  ;  whereas  fraud  and  bad  faith  on  the  part 
of  the  defendants  in  the  suit,  form  the  very  foundation  of  this  ,puit. 
It  is  admitted  by  counsel  against  the  petition  in  Ruffin's  case,  that 
fraud  would  vitiate  all  transactions  of  this  kind  ;  but  his  claim  was 
placed  on  the  ground  that  there  was  no  fraud  in  the  case.  And  also 
on  the  ground  that  to  admit  the  claim  of  the  petitioners  and  to  give 
the  joint  creditors  a  lien  on  the  property  after  a  sale,  and  after  the 
trade  had  been  continued  for  years  by  the  purchasing  partner  (and 
in  that  case  it  had  been  with  the  knowledge  of  the  joint  creditors,) 
would  operate  unjustly  and  as  a  fraud  upon  the  separate  creditors  of 
that  partner,  who  were  presumed  to  have  given  credit  to  him  upon 


CASES  IN  CHANCERY.  343 

the  failk  of  n-hal  they  saw  as  separate  property;  the  purcliasing  part-  F'^hCircuu 
ner  being  the  risible  owner.     In  this  case  there  are  no  seperate  ere-     lopi.ir. 
ditors,  and  therefore  no  such  equities  exist,  Vaii. 

The  decisions  in  the  cases  cited  all  evidently  turn  upon  the  con- 
struction given  to  a  certain  provision  in  the  Bankrupt  Act  21  James 
1,  cli  19,  sec  10  and  11,  by  which  all  the  property  which  remains  in 
the  possession,  order  and  disposition  of  the  bankrupt  at  the  time  of 
the  bankruptcy,  is  made  to  pass  by  the  assignment  to  the  assignee. 
See  Jones  vs.  Gilhons,  9  Vcsey  407.  See  also  the  case  of  Shake- 
shaft  <^aZ.  cited  by  Mr.  Mansfield  in  Ru din's  case,  in  which  Lord 
Thurlow  said  that  he  could  not  take  accounts  between  the  respective 
partners,  but  finding  the  effects  in  the  hands  of  one,  7i'hatever  might 
be  the  demands  of  the  others,  or  the  consequence  to  the  joint  credit- 
ors, the  goods  were  the  separate  property  of  that  one  and  must  be 
applied  to  his  separate  debts.  In  that  case  the  bankrupt  partner  hap- 
pened by  accident  to  have  the  property  in  his  hands — there  had  been 
no  purchase  or  payment  by  him.  So  far  was  the  provision  in  the 
bankrupt  act  referred  to,  held  to  extend. 

But  even  in  thecase  of  Ruffin,  notwithstanding  it  was  a  bankruptcy 
case,  and  notwithstanding  this  statute,  the  Lord  Chancellor  does  not 
express  a  decided  opinion.  He  denies  the  relief  sought  on  the  peti- 
tion, because  it  was  a  matter  of  douht,  whether  they  were  entitled  to 
it,  and  therefore  that  it  wonld  be  better  to  leave  the  parties  to  file  a 
bill. 

Ex-jmrte  Fell,  10  Vesey  347,  differs  but  little  from  Ruffin's  case, 
except  that  the  retiring  partner  received  security  for  his  indemnity, 
and  for  the  payment  of  the  debts,  besides  the  agreement  and  individ- 
ual responsibility  of  the  remaining  partner.  His  equities  upon  the 
property  would  therefore  be  less  strong  than  in  Ruffin's  case. 

But  another  thing  that  renders  those  cases  unlike  the  present,  is 
that  the  petitioners  were  the  crerf«7ors  of  the  partnership,  and  they 
had  another  remedy,  for  the  selling  partners  were  solvent,  and 
they  could  collect  their  debts  of  them. 

We  rely  on  the  case  of  Deveau  vs.  Foider,  2  Paige  400,  and  on 

the  case  of  Smith  vs  Haviland  Sf  Field  there  cited..     These  cases 

are  precisely  in  point,  and  the  hrmer  is  identical  with  this  in  almost 

all  its  circumstances,  so  far  as  this  branch  of  the  case  is  concerned. 
Vol.  I.  44 


344  CASES  IN  CHANCERY. 

Fifth  Circuit  Ti^g  great  difference  between  this  case  and  also  the  one  in  Paige  and 
'"'Q^^  the  cases  in  Vesey  &c.,  is  that  in  the  latter  the  question  was  between 
Vail,  bona  fide  creditors,  and  the  rights  of  bona  fide  holders  of  property 
were  to  be  affected  ;  whereas  in  these  no  such  rights  are  to  be  affec- 
ted so  far  as  appears  upon  the  bill,  and  the  suit  is  against  a  partner 
fraudulently  seeking  to  smuggle  the  property  and  to  appropriate  it, 
not  to  pay  his  separate  creditors,  but  to  %  oitm  use,  and  against  oth- 
ers fraudulently  conniving  with  and  aiding  him  in  this  object.  The 
equities  therefore  in  the  two  classes  of  cases,  without  reference  to 
the  provisions  of  the  bankrupt  act,  are  widely  different. 

It  was  urged  by  the  counsel  in  support  of  the  motion,  that  the  facts 
were  not  fully  stated  in  the  Deveau  case.  But  of  this  there  is  no  ev- 
idence. It  was  said  that  it  was  unlike  this  case  because  it  does  not 
appear  that  the  vendor  received  any  thing  for  his  interest.  But  this 
is  immaterial  ;  he  received  a  covenant  of  indemnity  against  the 
debts,  and  this  would  be  a  sufficient  consideration  for  the  transfer  and 
sale,  whether  there  was  any  thing  paid  or  not. 

It  was  also  said  that  no  reference  was  made  either  by  counsel  or 
the  court  in  the  Deveau  case  to  the  cases  in  Vesey,  and  from  this  an 
inference  was  drawn  that  the  facts  were  dissimilar.  But  this  cir- 
cumstance is  susceptible  of  a  much  more  satisfactory  explanation- 
There  are  much  later  cases  than  those  in  Vesey,  in  the  English  Re- 
ports, entirely  similar,  and  in  which  the  same  decision  had  been 
made ;  and  to  these  later  cases  reference  was  made  by  the  court 
What  cases  were  cited  by  counsel  does  not  appear. 

But  there  is  another  branch  of  this  case  left  out  of  view  by  the 
counsel  for  the  motion.  The  equity  of  the  bill  does  not  rest  alone 
in  the  equitable  lien  of  the  complainant  as  a  partner  on  the  partner- 
ship property.  It  rests  also  upon  the  liability  of  the  complainant  to 
pay  the  debts,  upon  the  fact  that  the  defendant,  Albert  L.  Vail,  is 
legally  and  equitably  bound  to  the  complainant  to  pay  them  and 
save  him  harmless,  upon  ihe  fraud  of  Vail  in  assigning  and  disposing 
of  his  property  and  himself  absconding,  so  as  to  deprive  the  complai- 
nant of  all  remedy  at   law. 

Certainly  these  peculiar  circumstances  would  give  a  court  of  equi- 
ty, jurisdiction  of  the  case,  and  would  entitle  the  complainant  to  come 
into  court  and  obtain  a  discovery  and  relief,  even  though  there  were 


CASES  IN  CHANCERY.  845 

none  of  the  partnership  property  left,  or  though  there  had  been  no '^''^''  '-'"''^"' 
partnership.     He  would  be  entitled  to  come   in  and  file  his  bill    for     TopUff. 
the  purpose  of  setting  aside  this  fraudulent  conveyance,  and  obtain       vaji. 
an  injunction  against  removing  or  disposing  of  the  property — partic- 
ularly as  both  the  assignor  and  assignee  are  out  of  the  jurisdiction  of 
any  court  of  law  of  this  State. 

The  Chancellor. — I  can  see  no  well  founded  distinction  between 
this  case  and  the  case  of  Deveau  vs.  Fowler,  2  Paige  400. 

The  cases  cited  from  Vesey,  I  am  inclined  to  think  stand  on  a  dif- 
ferent ground. 

As  a  question  between  bona  fide  creditors  of  a  previous  firm  and 
the  separate  creditors  of  a  partner  who  continued  the  business,  and 
was  the  sole  visible  owner  of  the  property  employed  in  the  trade,  I 
should  concur  in  the  view  that  where  the  separate  creditors  had  given 
credit  relying  upon  the  property  employed  in  the  trade  for  payment, 
they  should  be  preferred  to  the  creditors  of  the  previous  firm.  But 
no  such  question  arises  here  as  the  case  now  stands.  The  whole 
transaction  is  alleged  to  be  fraudulent. 

That  the  remaining  property  of  this  firm  has  been  fraudulently- 
transferred,  and  without  consideration  to  prevent  its  application  to 
the  payment  of  the  partnership  debts  ;  and  this  for  the  purpose  of 
this  motion  must  be  considered  as  admitted. 

The  creditors  of  a  partnership  have  a  right  to  payment  out  of  the 
partnership  effects;  in  preference  to  the  creditors  of  an  individual 
partner. 

In  Deveau  vs.  Fowler,  the  partnership  effects  were  transferred  to 
the  partner  continuing  the  trade,  and  he  agreed  to  pay  the  partner- 
ship debts,  and  that  is  this  case.  The  circumstance  of  taking  the 
individual  bond  or  guarantee  of  this  partner  does  not  vary  the  case.         « 

I  think  the  Chancellor  was  right  in  the  last  mentioned  case,  in  say- 
ing, that  in  the  absence  of  any  agreement  to  the  contrary,  it  is  the 
fair  presumption  that  the  retiring  partner  did  not  intend  that  this  pro- 
perty should  be  used  for  his  individual  purpose,  leaving  the  debts  of 
the  firm  unpaid.  This  case  as  it  now  stands  is  stronger  than  the  case 
of  Deveau  vs.  Fowler. 

Here  it  is  alleged  that  Vail  has  fraudulently  transferred  the  assign- 


346  CASES  IN  CHANCERY. 

First  Circuit  gd  effects  for  the   purpose  of  preventing  their  application  to  the  pay- 
To  litr-     "^snt  of  the  partnership  debts,  and  that  he  has  absconded. 

The  complainant  does  not  ask  that  the  partnership   property   shall 
be  reconveyed  to  him,  but  applied  to  the  payment  of  the  partnership 
debts,  for  which  he   is  liable.     If  the  goods  were  in  the  hands  of  a 
hona  fide  purchaser,  it  would  present  a  very  different  case. 
Motion  denied. 


vs. 
\ail. 


CASES  IN  CIIANCKRY.  :M7 


Richard  Suydam  and  others,  rs.   Antoixe  Dequindue,  Petkr  .T, 

Desnoyers  and  others. 


First  r'iri'iiil 


Suydam. 

Where  a  bill  was  filed  by  a  ccsiiii  que  trust  to  set  aside  adecd  of  assignment  as  fraudulent,  Dequiudre. 
or  to  enforce  the  Irusi:  upon  demurrer  to  the  bill,  it  was  held  that  it  was  not  necessary  to  make 
a  company  parlies  defcndiinig,  whose  riglits  accrued  prior  to  the  execution  of  the  deed  of  as- 
sigriiucm,  aud  were  set  fortli  in  tile  instrument  of  assiguiiient  whicli  was  recited  iii  the  bill, 
and  that  If  a  sale  of  the  assijined  i)roperty  should  become  necessary,  it  must  be  sold  subject  to 
the  rights  of  the  company. 

Where  several  persons  were  named  us  creditors  in  a  deed  of  assignment  for  the  benefit  of  cred- 
itors, and  a  bill  Was  filed  liy  some  of  the  creditors,  for  whose  benefitthe  assignment  was  made 
to  set  aside  the  assignment  as  fraiuhilciu,  or  enloruc  the  iriisi,  and  ilic  bill  set  out  the  assign- 
ment, and  staled  that  all  the  debts  due  to  llip  creditors  named  in  il,  cxceiit  the  complaiiianls 
had  lieon  paid  up  and  cxlingiushed;  ujion  demurrer  to  the  hill,  it  was  held  that  it  was  not  ne- 
cessary to  raakc  those  persons  whose  debts  were  stated  to  have  been  paid  and  satisfied  parlies 
to  the  bill. 

A .  on  the  21th  day  of  October,  1?"C  made  an  absolute  assignment  of  certain  real  and  personal 
esUitc  to  1).,  for  the  purpose  of  paying  his  debts  as  designated  in  schedules  attached  lo  the 
deed  of  assignment,  directing  the  trustee  to  sell  all  the  property  assigned  at  private  or  pulilic 
sale  within  two  years,  and  D.  Iiavinj;  accepted  the  trust  by  signing  the  deed,  but  never  hav- 
ing taken  possession  of  tlic  properly,  or  sold  or  disposed  of  any  iiart  thereof,  or  done  any 
thing  towards  carrying  theobjecls  of  the  trust  into  execution  within  the  two  years,  upon  a 
hill  filed  by  S.  and  others,  creditors  of  A.,  and  for  whose  benefit  in  part,  the  assigmncnl  was 
made  for  the  purpose  of  coercing  the  application  of  llieproi)erly  assigned  to  the  purposes  ex- 
pressed in  the  deed  of  trust,  or  have  the  same  set  aside  and  vacated ;  it  was  held  that  the  bill 
Was  not  prematurely  filed,  and  that  the  complainants  liad  a  right  lo  institute  proceedings  in 
this  court  to  enforce  the  execution  of  the  trust  or  set  aside  llie  deed.  It  was  further  held  ilial 
the  deed  of  trust  being  absolute  in  its  terms,  and  tlie  trustee  having  accepted  tlie  trust,  the  pro- 
perty assigned  was  dedicated  to  the  purposes  of  the  trust,  although  the  deed  was  made  willi- 
out  the  knowledge  or  concurrence  of  the  cestui  que  trust. 

Where  the  conveyance  is  absolute,  vesting  the  property  in  the  assignee,  no  express  assent  of 
a  cestui  que  trust  is  required.  The  relation  of  trustee  and  cestui  que  trust  is  constituted  at 
once  on  the  execution  of  the  deed,  and  cannot  afterwards  be  revoked  except  upon  tlic  ex- 
press dissent  of  the  cestui  que  trust. 

Bill  filed  by  creditors  to  set  aside  a  deed  of  assignment  on  the 
ground  of  fraud,  or  to  enforce  the  execution  of  the  trust  under  the 
deed. 

To  this  bill  the  defendants  demurred. 

A.  D.  Fraser  in  support  of  the  demurrer. 

E.  C.  Seaman  contra. 

The  Chancellor. — The  first  point  made  in  support  of  the  demur- 


348  CASES  IN  CHANCERY. 

First  Circuit  j.gj.  jg^  i\^^i  \\^q  tjj-jiQ  limited  in  the  deed  of  assignment  for  closing  the 
Suvdain.  ^^^^^  ^^.d  HOt  expired  at  the  time  of  filing  the  bill  in  this  cause.  The 
Dequfndre.  deed  of  assignment  was  made  on  the  twenty-fourth  day  of  October, 
eighteen  hundred  and  thirty-six  ;  the  time  limited  for  closing  the 
trust  expired  on  the  twenty-fourth  day  of  April,  eighteen  hundred 
and  forty,  and  the  bill  was  filed  on, the  ninth  of  March,  eighteen 
hundred  and  forty. 

The  bill  alleges  that  the  assignment  was  fraudulent,  and  it  is  fur- 
ther alleged  that  the  trustee  up  to  the  time  of  filing  the  bill  had  ne- 
glected to  take  possession  of  the  property,  or  to  take  any  steps  to- 
wards executing  the  trust,  and  had  declared  his  intention  not  to  ex- 
ecute it.  The  demurrer  cannot  be  sustained  on  this  ground.  The 
complainants  who  are  judgment  creditors  were  authorized  under  these 
circumstances  and  before  the  time  had  expired  for  closing  the  trust 
to  resort  to  this  court  either  for  the  purpose  of  setting  aside  the  as- 
signment or  to  procure  the  aid  of  this  court  to  compel  an  execution 
of  the  trust.  Other  causes  of  demurrer  were  suggested  ore  tenus : 
I  First,  that  the  Detroit  and  Pontiac  Rail-road  Company  should  have 
been  made  parties.  I  think  this  was  unnecessary.  Their  rights  ac- 
crued prior  to  the  execution  of  the  deed  of  assignment,  and  are  set 
forth  in  that  instrument  which  is  recited  in  the  bill,  and  if  a  sale  of 
the  premises  shall  become  necessary,  they  must  be  sold  subject  to 
the  rights  of  the  company.  Eagle  Fire  Company  vs.  Lent  et.  al.  6 
Paige  635.  It  is  also  urged  that  several  persons  who  were  named 
as  creditors  in  the  assignment  are  not  made  parties  to  the  bill  ;  as  to 
all  those  persons  it  is  alleged  in  the  bill  that  the  debts  due  to  them 
have  been  paid  and  extinguished.  This  is  sufficient  upon  de- 
murrer. If  the  allegations  in  the  bill  in  this  respect  prove  -rt-ue,  it 
was  not  necessary  to  make  them  parties.  The  other  objection  is 
that  James  Boyd,  Jr.,  should  have  been  made  a  complainant  instead 
of  a  defendant.  It  would  seem  to  rae  to  have  been  preferable  if  the 
bill  had  been  so  framed,  but  he  has  been  made  a  party  and  the  court 
will  be  able  to  settle  and  adjudicate  on  his  rights  in  the  case,  under 
the  present  bill.  It  is  merely  a  technical  objection  and  not  sufficient 
to  sustain  the  general  demurrer. 

Demurrer  overruled  and  leave  to  answer. 


CASES  IN  CHANCERY.  :mO 

The  defendant  Dequindre  put  in  an  answer  denying  all  fraud  and  First  circuit. 

claiming  the  right  to  revoke  the  deed  of  assignment  on  the  ground    v^^j,,.,,,, 

that  the  creditors  were  not  parlies  or  privies  to  the  deed  and  never  Daiuiudrc 

claimed  any  benefit  under   it  until  about  the  time   of  filing  the  bill 

in  this  case. 
The  complainants' solicitor  moved  for  the  appointment  ofareceiver. 

E.  C.  Seaman,  in  support  of  the  motion. 

1.  The  deed  from  Dequindre  to  Desnoyers  created  a  trust  which 
Desnoyers  accepted  by  executing  the  deed  and  putting  the  same  on 
record.     See   Jereiny's  Eq.  129. 

The  transcript  of  the  record  certified  is  evidence  of  itself  of  the 
contents  thereof  and  of  the  due  execution  of  the  deed.     R.  S.   261, 
Sec.  31  Lmvs  of  ISiO,  167,  Sec.  6. 

2.  Desnoyers  having  accepted  the  trust  was  bound  to  execute  it 
faithfully,  and  a  court  of  equity  has  power  to  enforce  its  execution 
in  behalf  of  the  cestui  que  trust,  2,  Story's  Eq.,  303-4  Jeremy's  Eq. 
20,  Sands  vs.  Codioise  4  Johns.  Rep.,  536,  and  if  the  trustee  dies 
or  is  incompetent  or  refuses  to  act,  or  if  there  has  been  an  omission 
to  appoint  one,  the  court  will  appoint.     Jeremy's  Eq.,  20,  163. 

In  this  case  Desnoyers  ut  terly  refused  to  act  as  trustee  before  the 
bill  was  filed,  and  the  time  within  which  he  was  authorized  to  sell 
expired  in  April,  1840,  and  he  is  now  a  naked  trustee  holding  the 
legal  title  without  the  power  to  sell. 

3.  As  Desnoyers  has  refused  to  act  and  his  power  to  act  has  ex- 
pired, a  receiver  should  be  appointed  to  collect  the  rents  and  profits 
for  the  benefit  of  the  creditors  as  well  as  to  take  charge  oi  the  prop- 
erty. 

In  all  cases  where  there  is  danger  of  trust  property  being  squan- 
dered, a  court  of  equity  will  appoint  a  receiver.  2  Story^s  Eq.  130 
132.  sec.  827  to  829,  836  ;  Jeremy's  Eq.  174,  248,  2  Madd.  Ch. 
189,  12  Vesey  4,  Hart  vs.  Crane!  Paige  37. 

4.  Desnoyers  as  well  as  Dequindre  is  liable  for  the  rents  and 
profits  of  the  trust  property  accruing  since  the  execution  of  the  trust 
deed,  and  should  be  ordered  to  pay  the  same  forthwith  to  a  receiver 
for  the  benefit  of  the  creditors.  Sands  vs.  Codwise  4  J.  R.  536; 
Id.  604-5  ;  and  a  court  of  equity  will  hold  a  trustee  responsible  for 
the  consequences  of  a  breach  of  trust  whether  he  derives  any  ben- 


•350  CASES  IN  CHANCERY. 

rir.i Circuit  gjQt  from  it  or  not.  2  Madd  Ch  113  ;  Adams  vs.  SJimo,  Sc/ioales  Sf 
^i^  hefroy  272  ;  17  Ves.  489 ;  2  Story's  Eg.,  Sec.  1268-9,  Id.  1275-6, 

Uerjuiiidre    2^^^  ^^^    ^^  518. 

A  court  of  equity  will  also  hold  a  trustee  responsible  for  losses  re- 
sulting from  a  wilful  default.  Osgood  vs.  Franklin,  2  John  Ch.  R.  27. 
And  where  a  trustee  keeps  a  trust  fund  in  his  hands  for  a  year  and 
omits  to  pay  over  the  proceeds  the  court  will  charge  him  with  inter- 
est.    Gray  vs.   Thomfson,  1  Johns  Ch.  R.  82. 

A.  D.  Fkaser,  contra, 

1.  The  deed  was  executed  without  the  privity  of  any  of  the  cred- 
itors, they  are  not  parties  thereto,  nor  ever  assented  to  it,  or  until 
now  claimed  the  benefit  of  it,  and  it  was  without  any  consideration. 
He  may  therefore  revoke  it. 

Where  a  person  does  loithout  the  privity  of  any  one.,  without  recei- 
ving consideration,  and  without  notice  to  any  creditor  himself  make 
a  disposition  as  between  himself  and  trustees,  for  the  payment  of  his 
debts,  he  is  merely  directing  the  mode  in  which  his  own  property 
shall  be  applied  for  his  own  benefit,  and  that  the  general  creditors 
or  those  named  in  the  schedule  are  merely  persons  named  there  for 
the  purpose  of  shewing  how  the  trust  property  under  the  voluntary 
deed  shall  be  applied  for  the  benefit  of  the  volunteers.  Garrard  vs. 
Lord  Lauderdale  2  Sim.  Ch.  R.  1,  (S.  C.  5  Eng.  Ch.  Cand,  1;) 
Walwynvs.  Coutts,  3  JVier.  707,  ('iS.  C.3  Simons  14;  S.  C.  5 
E7ig.  Cond.  Ch.  7. 

The  deed  in  this  case  was  a  voluntary  deed.         ,* 

Dequindre  was  dealing  with  his  own  property  for  his  own  person- 
al benefit  and  accommodation  in  paying  his  creditors  as  he  thought 
proper.  Page  vs.  Broom  4  Russell  6,  (S.  C.  3  Eng.  Ch.  Cond.  543.^ 
The  creditors  never  submitted  or  assented  to  take  the  benefit  of  the 
deed,  or  conformed  to  its  terms,  or  abstained  from  sueing  him  in  con- 
sequence.    2  Sugden,  187,  2  Chitty's  Eq.  Dig.  1181. 

If  property  be  conveyed  by  a  debtor  in  trust  for  the  benefit  of 
creditors  who  are  neither  parties  nor  privy  to  the  deed,  the  deed 
merely  operates  as  a  po?ver  to  the  trustees  to  apply  the  property  in 
payment  of  debts,  and  such  power  is  revocable  by  the  debtor.  Acton 
is.  Woodgatc^  Mylne  ^'  KeeneA9'2.  (S.  C.  8Evg.  Ch.  Cond.  97.; 


CASES  IN  CHANCERY.  3-51 

2d.     If  the  creditors  are  entitled  to  any  benefit  under  the  deed  of  ^'"'  *-'"''^"" 
assignment,  the  remedy  is  at  law,  as  there  is  a  covenant  on  the   part    suydam. 
of  Desnoyer  to  execute  the  alleged  trust.  Uequiiidre. 

Equity  has  cognizance  only  of  executory  trusts  not  (as  to  trusts) 
of  those  executed,  or  where  trusts  can  be  enforced  at  law  there  must 
be  some  act  to  be  done  by  the  trustee.     Baldwin  407. 

It  cannot  sustain  a  suit  at  law  on  an  equitable  right,  only  adjudge 
a  remedy  appropriate  only  to  equity. 

To  sustain  a  suit  in  equity  on  a  mere  legal  right  for  which  the 
law  affords  a  complete  remedy.     Ibid.  407,  2  Cr.  444. 

If  a  trust  is  made  and  no  agreement  to  execute  it,  the  trust  is  in 
equity,  but  if  there  is,  it  is  to  be  enforced  at  law.     Ibid.  422. 

3d.  Even  if  complainants  should  be  entitled  to  relief  and  this 
should  be  the  competent  mode,  yet  it  is  insisted  that  this  bill  was  pre- 
maturely filed — the  bill  being  filed  on  the  9th  March,  1840,  although 
the  alleged  trust  did  not  expire  till  24th  April,  1840. 

A  plaintiff  must  have  the  right  he  asks  when  he  puts  his  bill  up- 
on the  file.     4  Russell  35.5.  S.  C.  bEng.    Cli.    Cond.  4. 

4.  In  any  stage  of  the  case  the  want  of  equity  is  fatal.  Bald- 
win 416, 

December  7,  1841. 

The  Chancellor. — On  the  twenty-fourth  day  of  October,  1836, 
Dequindre,  one  of  the  defendants  in  this  cause,  made  an  absolute 
assignment  and  conveyance  of  certain  real  and  personal  estate  to 
the  defendant,  Desnoyer,  for  the  purpose  of  paying  his  debts,  as  des- 
ignated in  schedules  attached  to  the  deed  of  assignment. 

The  directions  in  the  deed  of  assignment  were,  that  the  trustee 
should  sell  at  private  sale,  and  that  such  portions  of  the  property  as 
should  not  have  been  sold  at  the  end  of  eighteen  months  should  be 
sold  at  public  auction  within  two  years  thereafter.  Among  the  cre- 
ditors who  were  directed  to  be  paid  from  the  proceeds  of  such  sale, 
were  the  complainants  in  this  cause. 

Desnoyer  accepted  the  trust  expressly  was  a  party  to  and  signed 
and  sealed  the  deed  of  assignment  at  the  time  it  was  executed  ;  but 
as  appears  from  the  bill  and  the  answers  in  the  cause,  has  never 
either  taken  possession  of  the  property   or  sold  or  disposed   of  any 

Vol.  I.  45 


352  CASES  IN  CHANCERY. 

First  Circuit  part  Qf  jj.^  qj.  indeed  done  any  thing  towards  carrying  the  objects  of 
Suydam     ^'^^  ^'"'^^^  ^^^^*^  execution.     The  two   years    within  which  he  was  to 

Dequtntire.  ^avo  closed  the  trust,  by  sale  at  auction,  of  whatever  should  not  have 
been  sold  at  private  sale,  expired  on  the  twenty-fourth  of  April,  1840. 
On  the  ninth  of  March,  1840,  this  bill  was  filed  for  the  purpose  of 
either  coercing  the  application  of  this  property  to  the  purposes  ex- 
pressed in  the  deed  of  trust  or  to  have  it  set  aside  and  vacated.  A 
preliminary  objection  was  made  that  this  bill  was  prematurely  filed  ; 
but  I  have  no  doubt  that  after  so  long  a  time  had  elapsed  and  after 
the  trustee  had  refused  to  proceed  in  the  execution  of  the  trust,  the 
complainants  could  institute  proceedings  to  set  aside  the  deed,  or  com- 
pel the  execution  of  the  trust. 

But  this  motion  is  resisted  principally  on  the  ground  that  the  deed 
of  trust  was  voluntary,  that  the  creditors  were  not  parties  to  it,  nor 
ever  assented  to  it,  and  have  not,  until  now,  claimed  the  benefit  of 
it ;  and  therefore  that  Dequindre  may  revoke  it.  There  is  an  ap- 
parent, and  perhaps  an  actual  conflict  of  the  authorities  on  this  sub- 
ject. 

The  case  of  Wahoyn  vs.  Coutts,  3  Merivale  707  seems  to  be 
the  case  referred  to  in  subsequent  decisions  as  the  basis  of  this  doc- 
trine. In  that  case  the  deed  of  trust  was  voluntary  and  without  the 
knowledge  of  the  creditors,  and  before  assent  had  been  expressed  or 
any  rights  acquired  ;  new  deeds  had  been  made  materially  varying 
the  trust,  and  in  fact  in  substance  revoking  the  first  deed.  The  case 
of  Garrard  vs.  Lord  Lauderdale  3  Sinions  1  maybe  distinguished  from 
the  case  under  consideration.  It  was  an  indenture  of  three  parts,  the 
grantor,  the  trustees  and  the  creditors.  The  creditors  had  not  exe- 
cuted the  deed,  and  before  the  bill  in  that  case  was  filed  or  any  as- 
sent expressed,  a  different  disposition  had  been  made  of  the  proper- 
ty, and  the  assignment  in  fact  revoked.  Some  other  cases  have  been 
referred  to  to  sustain  this  proposition. 

On  the  other  hand  the  cases  are  numerous,  affirming  a  contrary 
doctrine,  or  if  not  directly  adverse,  at  least  difficult  to  be  reconciled 
with  the  cases  before  referred  to. 

In  Cumberland  vs.  Coddington  3  J.  C.R.  261,  it  is  said  that  where  a 
trust  was  created  for  the  benefit  of  a  third  person,  he  may  affirm  the 


CASES  IN  CHANCERY.  353 

trust  and  enforce  its  execution.  It  has  also  been  held  that  when  the  deed  ^''^'''  Circuit 
of  trust  is  absolute  in  its  terms,  the  assent  of  the  creditors  is  not  re-    yuvdum 
quired,  that  the  relation   of  trustee  and  cestui  que  trust  was  at  once  DcquVndre. 
constituted  so  that  the  assignor  could  not  recall  the   deed.     Ellison 
vs.  Ellison,  6  Vesey,  G5G.     Many  other  cases  may  be  referred  to 
sustaining  this  ground.     Without  undertaking  to  reconcile  the  cases 
of  VValvvyn  vs.  Coutts,  and  Garrard  vs.  Lord  Lauderdale,    with  the 
cases  last  above  referred  to,  (and  it  seems  to  me  it  would  be  difficult 
entirely  to  do  so  ;)  it  is  sufficient   to  say  that  those  cases  differed  in 
many  essential  particulars  from  the  other  class  of  cases  and  also  from 
the  one  under  consideration. 

The  deed  in  this  case   is  absolute   in  its  terras  ;  no  assent    of  the 
creditors  is  required.     Desnoyer,  the  assignee,  positively  and  express- 
ly accepted  the  trust.     The  property  is  in  fact  dedicated  to  the  pay- 
ment of  the  debts  of  these,  among  other  creditors.     Before  filing  the 
bill  a  portion  of  the  creditors  require  the  trustee   to  proceed   in  the 
execution  of  the  trust,  which  he  declines  to  do.     The  deed  of  trust 
is  not  revoked.     No  step  of  that  kind  is  taken  or   intimated.     The 
creditors  find  themselves  estopped  by  this  deed  from  collecting  their 
debts  by  the  ordinary  course  of  proceedings  at  law,  and  the  proper- 
ty remains  sheltered  and  locked  up  in  the  hands  of  the  assignee. 

Under  this  state  of  things  there  can  be  doubt  that  it  is  the  duty  of 
the  court  to  enforce  the  execution  of  the  trust  or  to  set  aside  the  as- 
signment as  intended  to  hinder  and  delay  creditors.     The  provisions 
of  the  assignment  are  fair  and  equitable  and  such  as  there  can  be  no 
objection  to  carrying  into  effect. 

I  am  disposed  to  take  the  ground  that  where  the  conveyance  is  ab- 
solute, vesting  the  property  in  the  assignee,  as  in  this  case,  no  express 
assent  of  the  cestuis  que  trust  is  required — and  while  the  property  re- 
mains unchanged,  the  cestuis  que  trast  although  the  instrument,  was 
made  without  their  concurrence,  may  require  and  coerce  the  execu- 
tion of  the  trust.     I  am  inclined  to  the  opinion   that  the  relation  of 
trustee  and  cestuis  que  trust  was  constituted  at  once  on  the  execution 
of  the  deed  and  that  it  could  not  afterwards  have  been  revoked  or 
varied  except  upon  the  expressed  dissent  of  the  cestuis  que  trust. 
As  to  whether  the  trustee  shall  be  required  to  proceed  and  execute 


354  -  CASES  IN  CHANCERY. 

First  Circuit,  the  tfust,  oi'  a  receiver  be  appointed  I  have  had  some  hesitation,  but 
sj  ,  as  it  it  seems  that  the  trustee  on  being  required  refused  to  proceed 
Dequfiidre  ^^  ^^®  execution  of  the  trust,  and  states  that  he  accepted  the  trust  only 
on  condition  that  he  should  not  be  required  to  devote  his  personal  at- 
tention to  this  business,  it  will  be  necessary  that  a  receiver  should  be 
appointed  over  whom  the  court  can  exercise  a  direct  control. 

I  shall  at  present  limit  the  order  to  the  appointment  of  a  receiver 
to  receive  the  rents  and  profits  of  the  assigned  property,  and  as  the 
amount  of  debt  has  not  been  precisely  ascertained,  it  will  be  neces- 
sary that  a  reference  should  be  made  to  ascertain  the  amount  still 
unpaid.  And  as  it  cannot  now  be  ascertained  how  much  of  this  prop- 
erty it  will  be  necessary  to  sell,  the  directions  as  to  the  amount  to  be 
sold  and  the  manner  in  which  it  shall  be  sold  will  be  reserved  until 
the  coming  in  of  the  i-eport. 

Order  accordingly. 


CASES  IN  CHANCEUV  ^  35r> 


Joel  L.  Ankrim  vs.  Samuel  D.  Woodworth. 


Firsl  Circa  it 


Where  the  transactions  staled  in  the  bill  by  which  certain  notes  were  obtainei,  presented  a  case       Ankrim. 
of  fraud,    although,  from   the  case  made,  it  was  doubtful  whether  the  complainant  could   WoodworUi, 
defend  successfully  the  full  amount  of  the  notes,  and  a  general  demurrer  was    interposed: 

'    the  court  refused  to  sustain  the  demurrer,  and  required  the  dcfendaut  to  answer. 

In  cases  of  fraud  where  it  is  doubtful  wheUier  the  defence  would  be  good  at  law,  the  Court  of 
Chancery  will  retain  jurisdiction. 

Bill  to  annul  and  set  aside  a  contract  and  to  compel  certain  notes 
to  be  delivered  up  and  cancelled.  States  that  in  February,  1839,  com- 
plainant entered  into  an  agreement  with  deiendant  to  purchase  cer- 
tain lands  which  the  defendant  represented  as  belonging  to  him,  as 
being  good  lands  situated  near  a  mill  with  some  thirty  acres  cleared 
or  improved  land.  That  in  the  spring  of  1840  complainant  execu- 
ted to  defendant  three  several  promissory  notes  for  fit^ty  dollars  each, 
payable  in  six,  twelve,  and  eighteen  months,  in  consideration  that  de- 
fendant would  cancel  and  destrd^^  the  agreement  to  purchase;  that 
soon  after  he  had  executed  the  notes  he  ascertained  for  the  first  time 
that  defendant  had  no  title  to  a  part  of  the  lands  contracted  to  be  con- 
veyed,  that  there  was  no  clearing  or  improvement  as  represented, 
and  that  the  lands  were  entirely  different  from  what  they  were  repre- 
sented to  be,  and  that  there  was  no  other  consideration  for  the  notes 
except  as  above  stated. 
To  this  bill  the  defendant  demurred. 

A.  Davidso.v,  in  support  of  the  demurrer. 

J.  S.  Abbott,  contra. 

The  Chancellor. — The  principgrou  nd  relied  upon  in  support 
of  the  demurrer  is  that  the  facts  stated  in  the  bill  would  constitute  a 
good  defence  at  law. 

The  transactions  stated  in  the  bill  by  which  the  notes  were  obtain- 
ed, present  a  case  of  fraud,  and  for  the  purpose  of  this  argument  are 
admitted  by  the  demurrer.  It  may  perhaps  be  doubtful  whether  the 
complainant  could  defend  successfully  for  the  full  amount  of  the  notes- 

In  the  case  of  Hamilton  vs.  Cummlngs,  1  Johii's  Ch.  Rep.  523,  the 


356  CASES  IN  CHANCERY. 

First  Circuit.  j.^_,jg  jg  gjatecl  to  be,  that  in  cases  of  fraud  where  it  is  doubtful  wheth- 
Ankriiii.    ^r  the  defence  would  be  good  at  law,  the  Court  of  Chancery  will  re- 
Woodworth  tain  jurisdiction.     And  a  still  stronger  case  is  cited  from  Peere  Wil- 
liams, where  the  Lord  Chancellor  cancelled  a  bond  without   sending 
the  parties  to  law,  although  he  was  inclined  to  think  the  bond  void  at 
law  as  well  as  in  equity. 

There  is  another  reason  for  retaining  jurisdiction  in  this  case,  as 
the  comploinant  is  liable   to  be  harassed  with  a  series  of  suits  upon 
these  notes,  confessedly  fraudulent  under  the  case  made  by  the  bill, 
and  this  too  perhaps  after  the  witnesses  may  be  bej'ond  his  reach. 
Demurrer  overruled  with  leave  to  answer. 


CASES  IN  CHANCERY.  357 


Edwin  Jerome  vs.  Charles  Seymour.  ^"^'  circun 

Wlirrc  A.  executes  a  mortgage  to  B.  ami  then  sells  the  inortgiigcil  premises  to  C,  subject  lo  the 
morlsage.  and  under  an  agreement  that  C  shall  pay  certain  notes  secured  thereby,  and  B  then 
executes  to  C.  a  quit  claim  deed  of  the  mortga'.'ed  premises,  the  premises  arc  discharged  from 
the  mortgage ;  and  the  eftect  is  the  same,  where  the  mortgage  lias  been  assigned  by  the  orig- 
inal mortgagee  to  a  third  person. 

The  bill  in  this  case  states  that  on  the  20th  December,  183G,  Cy- 
rus Shepherd  executed  to  Horace  R.  Jerome  two  notes  :  one  for  $240 
payable  in  one  year,  the  other  for  S240  payable  in  two  years  ;  on 
the  sixteenth  January,  he  executed  to  said  Jerome  a  mortgage  to  se- 
cure the  notes. 

That  on  the  2nd  of  April,  1838,  Horace  R.  Jerome  sold  and  as- 
signed the  notes  and  mortgage  to  complainant,  for  the  consideration 
of  {^500.  It  then  states  that  February  23rd,  1837,  Charles  Sey- 
mour  purchased  the  mortgaged  premises  from  Cyrus  Shepherd,  and 
they  were  conveyed,  subject  to  the  mortgage.  That  Seymour  paid 
no  consideration,  except  the  notes  and  mortgage. 

And  complainant  prays  a  statement  of  all  the  facts  of  the  conside- 
ration. That  immediately  previous  to  the  purchase.  Shepherd,  H. 
R.  Jerome  and  Seymour  were  the  joint  owners,  and  they  were  jointly 
building  a  saw  mill.  After  the  sale,  Seymour  owned  two-thirds,  and 
H.  R.  Jerome  one  third,  and  they  continued  on  with  the  work  in 
1837. 

That  Seymour,  with  intention  to  defraud  H,  R.  Jerome,  pretended 
lo  him  that  his  deed  of  the  mill  properly  was  defective,  and  desired 
said  Jerome  to  make  out  a  quit  claim,  for  the  purpose  of  correcting 
errors  and  without  intending  to  afTect  the  mortgage  and  deed  execu- 
ted February  27,  1837. 

Complainant  states  that  Seymour  paid  no  consideration,  and  it  was 
not  supposed  by  said  Jerome  that  deed  would  operate  to  release  the 
mortgage,  and  that  if  Seymour  procured  the  deed  for  such  purpose, 
or  supposed  it  would  elFect  such  purpose,  he  fraudulently  concealed 
the  same  from  said  Horace.  That  Seymour,  both,  before  and  after- 
wards promised  Jerome  he  would  pay  the   notes,  and   in  the  fall  of 


358  CASES  IN  CHANCERY. 

Fifth  t'licuit  ig3Y^  Seymour  stated  he  had  advanced  more  than  his  share   towards 

Jerome,    the  mill,  and  being  so  in  advance,  ought  not  to  pay    interest   on  said 

Seymour,  notes  unless  he  had  interest  on  the  balance  due    him,  and   Seymour 

claimed  a  written  stipulation,  which    Horace  then  gave    him,  not  to 

charge  interest,  in  case  Seymour  paid  said  notes  within   some   time 

there  stated.     The  terms  of  said  stipulation  are  demanded  by  said  bill. 

Complainant  charges  there  is  no  balance  due  Seymour  from  Hor- 
ace Jerome,  independent  of  said  notes  ;  but  that  on  the  contrary,  Ho- 
race R.  Jerome  claims  a  balance  due  from  Seymour.  In  case  Sey" 
mour  ;  claims  a  balance  to  set  off  against  the  notes,  complainant  offers 
to  submit  the  matter  to  a  Master  to  state  the  accounts,  and  in  such 
case  prays  that  said  Horace  may  be  made  a  party.  Complainant  al- 
so states  that  in  the  winter  of  1838  he  attempted  to  settle  with  Sey- 
mour, accounts  were  exhibited  and  Seymour  examined  and  took  a 
statement  of  the  same,  that  he  did  not  dispute  his  liability  to  pay  the 
notes,  but  claimed  he  had  a  stipulation  or  agreement  from  Horace  R. 
which  exempted  him  from  interest. 

That  he  attempted  again  to  settle  in  the  winter  or  spring  of  1838, 
as  the  agent  of  Horace,  and  the  accounts  were  looked  over  at  the 
house  of  complainant  in  Detroit,  that  the  notes  were  talked  of  and 
admitted  as  a  subsisting  claim. 

Complainant  charges  that  both  before,  and  after  the  transfer  of  said 
notes  and  mortgage,  Seymour  has  frequently  admitted  to  complainant 
his  liability  to  pay  the  notes,  that  Shepard,  the  maker,  is  insolvent, 
and  a  resident  of  the  state  of  New  York. 

The  defendant  admits  the  indebtedness  of  Cyrus  Shepard  to  Hor- 
ace Jerome  as  stated  in  the  bill.  Admits  giving  the  mortgage  to 
secure  the  debt,  also  the  acknowledging  and  recording,  and  that  the 
same  was  for  purchase  money. 

Admits  that  complainant  holds  the  assignment  of  the  notes  and 
mortgage,  but  denies  that  the  same  were  assigned  on  the  day  stated, 
and  denies  that  8500  or  any  other  sum  was  paid  for  the  assignment. 
For  answer  says  he  was  informed  by  the  complainant  that  the  notes 
and  mortgage  were  given  to  him  in  the  winter  or  spring  of  1837,  as 
agent  to  settle  ;  therefore  denies  that  complainant  was  ever  the  bona 
fide  assignee. 

Admits  that  said  mortgage  was  on  record  at  the  time  he  bought  out 


CASES  IN  CHANCERY.  359 

Cyrus  Shepard,  and  that  Shepard  gave -him  a  deed  ;  but  denies  the  F'"t  Circuit 
same  was  subject  to  the  payment  of  the  mortgage,  but  stales  that  such    j„„me- 
conveyance  was  in  terms,  full  and  entire.  Seymour. 

Admits  that  at  the  time  of  the  purchase  made  of  Shepard,  he  had 
knowledge  of  the  notes  and  mortgage.  Fie  also  admits  he  agreed  to 
pay  the  mortgage,  which  agreement  is  in  writing. 

Denies  that  the  agreement  with  Shepard  to  pay  said  notes  and  mort- 
gage constituted  the  whole  or  a  considerable  portion  of  the  considera- 
tion, but  that  he  paid  him  some  $1600  in  money  and  property  he- 
sides.  States  that  before  the  agreement  to  buy  out  Shepard  a  copart- 
nership was  formed,  to  wit,  on  the  20th  day  of  December,  1836,  be- 
tween Cyrus  Shepard,  Seymour  and  PI.  R.  Jerome,  which  was  in  wri- 
ting, one  provision  of  which  wos  that  Seymour  and  H.  R.  Jerome, 
should  furnish  each  one  half  of  the  means  to  erect  a  saw  mill  and  dam, 
and  reim  burse  themselves  from  the  earnings. 

It  being  understood  that  the  description  of  the  premises  was  defec- 
tive, it  was  agreed  if  Seymour  wculd  buyout  Shepard.  Jerome  would 
give  a  conveyance  that  was  correct.  About  February  23,  1837,  he 
did  purchase  Shepards' interest,  and  received  a  conveyance  ;  sets  out 
the  consideration  and  refers  to  the  agreement  in  writing. 

Admits  that  immsdiately  previous  to  buying  out  Shepard  all  three 
were  joint  owners  and  engaged  in  putting  up  the  mill,  and  after  the 
purchase,  defendant  owned  two-thirds  and  H.  R.  Jerome  one  third, 
and  that  defendant  and  Horace  R.  continued  their  work  through  1837. 

That  after  the  purchase  it  was  proposed  by  said  Jerome  that  new 
articles  of  agreement  should  be  made,  by  which  defendant  should  be 
obligated  to  advance  according  to  his  interest,  this  the  defendant  de- 
clined to  do,  but  still  proposed  if  H.  R.  Jerome  would  release  the  mort- 
gage so  that  the  properly  would  be  clear  &;c.,  he  would  enter  into  such 
agreement ;  this  was  agreed  to,  and  thereupon  the  copartnership 
agreement  was  made. 

That  on  the  same  day  in  pursuance  of  the  original  agreement  and 
in  consideration  that  said  defendant  had  entered  y:ito  the  agreement 
by  which  he  bound  himself  to  pay  two-thirds  of  the  expenses,  and  for 
the  further  consideration  in  said  deed  expressed  ;  the  said  H.  R.  Je- 
rome on  the  27th  day  of  February,  1837,  by  deed  signed  by  himself  and 

Vol.  I.  46 


360  CASES  IN  CHANCERY. 

F'"t*^'fcui«- wife  quit  claimed  two-tliirds  of  mill  property  to  defendant,  and  the 
Jerome.  '^^^^  ^^^  acknowledged  and  recorded,  and  tlienin  defendants  custody. 
sJytnour.  Defendant  admits  the  prior  deeds  were  defective,  also,  that  he  paid  to 
the  said  Horace  R.Jerome  no  pecuniary  consideration  for  the  execution 
thereof;  that  one  object  of  ihe  quit  claim  was  to  correct  the  error. 
But  denies  all  fraud,  denies  that  the  mam  object  was  to  correct  the  er- 
ror, but  states  the  main  object  was  to  have  the  premises  discharged 
from  incumbrances,  and  Horace  R.  Jerome  designed  and  intended  in 
executing  the  quit  claim  deed  to  discharge  the  mortgage. 

Admits  he  promised  H.  R.  Jerome  he  would  pay  the  notes  both  be- 
fore and  after  quit  claim  deed. 

Admits  in  November,  1837,  he  had  an   interview  with  H.  R.  Je- 
rome at  Flint  concerning  note  and  advances  in  which  defendant  claim- 
ed he  had  advanced  more  than  his  share  which  said  Horace  R.  admit- 
ted, and  desired  defendant  to  take  said  two  notes  and  pass  to  his  cred- 
it, but  neither  of  said  notes  being  due  and  defendant  wanting  cash  de- 
clined, saying  they  might  come  in  after  due.     But  finding  he   could 
get  no  money  agreed  to  take  one,  afterwards  it  was  found  the   notes 
were  at  St.  Clair.     Then  concluded  to  take  both  and  apply  them  in 
the  manner  proposed,  and  drew  upon  the  back  of  the  statement  of  ad- 
vances an  agreement  on  the  part  of  H.  R.  Jerome,  to   deliver   both 
notes,  which  was  signed  by  H.  R,  Jerome.     Defendant  denies  any 
such  stipulation  in  relation  to  said  notes  as  stated  in  the  bill,  made  at 
any  time.     That  after  the  above  interview  he  went  on  in  1838   and 
made  further  advances,  and  by  the  winter  of  1839  completed  the  mill 
and  dam,  and  claims  a  large  balance  against  H.  R,  Jerome  over  and 
above  said  two  notes,  and  in  addition  a  large  stipulation  contained  in 
the  agreement.     Claims  complainant  has  no  right  to  bring  him   into 
court  to  compel  a  settlement  of  accounts  with  a    person  not  a  party 
to  the  suit. 

E.  C.  Seaman  for  Complainant. 

Lee  Hale  &  Harding,  for  Defendant. 

The  CHANCELL(fe. — From  the  statements  contained  in  the  answer 
I  think  there  is  a  good  reason  to  doubt  the  allegation  that  the  com- 
plainant is  the  bona  fide  holder  of  the  notes  and  mortgage  in  ques- 
tion. 


CASES  IN  CHANCERY.  361 

I   sliould   rather  be   inclined   to   the   belief  that  he   was   acting '^'"' ^''"="'' 
in  the  capacity  in  which  he  led  the  defendant  to  believe  he  was  ac-     ,.   ,  „ 
ting  until  a  short  tims  before  the  commencement  of  the  suit,  merely  gejmour. 
as  the  agent  and  attorney  of  Horace  R.  Jerome.     But  admitting  him 
to  be  the  actual  holder  of  these  papers,  how  would  the  case   stand  ? 
as  between  the  complainant  and  defendant  the  present   complainant 
can  have  no  greater  equity  as  agent  of  this  defendant  than  could  his 
assignor  H.  R.  Jerome. 

That  the  property  upon  which  the  mortgage  was  based  was  dis- 
charged by  the  quit  claim,  I  entertain  no  doubt,  that  it  was  the  mu- 
ual  understanding  and  intention  of  the  parties  that  such  should  be 
the  operation  and  effect  of  the  deed,  must  be  conceded.  The  effort 
then  to  subject  the  land  to  the  payment  of  the  mortgage  is  out  of  the 
question. 

But  it  is  said  that  as  a  part  of  the  purchase  money  to  an  amount 
equal  to  the  notes  remaining  is  in  the  hands  of  the  defendant,  the  court 
should  treat  this  as  a  trust  fund  and  enforce  payment  out  of  this  to 
the  present  complainant.  Shepard  the  grantor  of  the  defendant  is 
not  a  party  in  this  suit. 

It  is  true  the  defendant  admits  that  he  promised  it  the  time  of  the 
purchase  to  Shepard,  to  pay  these  notes  then  in  the  hands  of  Horace 
R.  Jerome,  the  assignor  of  the  complainant. 

In  the  course  of  their  mutual  dealings  as  copartners  it  was  express- 
ly agreed  in  writing  that  these  notes  should  be  credited  to  Horace  R . 
Jerome  and  charged  to  the  defendant  in  consideration  of  advances 
made  by  the  defendant  to  the  said  co-partnership. 

The  agreement  is  inthise  words:  '•  I  am  to  deliver  to  Charles 
"Seymour  the  two  notes  [  hold  against  Cyrus  Shepard  for  $2-40  each, 
" and  charge  them  against  the  balance  he  may  have  furnished  for 
"the  mill  over  his  share  without  interest.  H.  R.  JEROME.  " 

It  is  averred  that  the  advances  were  made  to  an  amount  greater 
than  the  notes. 

How  then  can  this  complainant,  standing  in  the  place  of  Horace 
R.  Jerome,  be  entitled  to  a  decree  ?•  If  the  notes  which  the  mort- 
gage was  given  to  secure,  were  the  notes  of  the  present  defendant  ne- 
gotiable, and  negotiated    before  due,  the  defendant   would  of  course 


i362  CASES  IN  CHANCERY. 

First  Circuit  j^^^^  ^^^^^  jj^^l^  j^^^j^  ^j^g^^  ^^  ^j^^  j^^^j^  ^P  ^j^^  holder.     But  they 
Jerome,    are  not  the  notes  of  this  defendant  but  of  Shepard.     The  promise  to 
Seymour,  take  them  up  was  made  to  Shepard  while  they  were  in  the  hands  of 
H.  R,  Jerome,  his  partner. 

According  to  the  answer,  which  for  this  purpose  must  be  taken  as 
true,  they  were  actually  paid.  Shepard  is  not  a  party  to  this  suit, 
and  it  is  not  proper  or  necessary  in  this  stage  of  the  proceedings  to 
decide  what  may  be  the  equity  between  him  and  Seymour,  but  it  is 
quite  certain  as  the  case  now  stands  the  present  complainant  is  not 
entitled  to  a  decree  against  the  defendant  upon  these  notes. 

I  have  had  some  hesitation  as  to  what  order  to  make.  Whether 
to  direct  the  nates  and  mortgage  to  be  cancelled,  or  to  permit  the 
cause  to  stand  over  with  leave  to  make  Horace  R.  Jerome  a  party 
with  the  view  to  a  settlement  of  tlie  account  for  advances  made  by 
Seymour  as  stated  in  his  answer,  which  it  was  stipulated  should  ap- 
ply in  payment  of  these  notes.  The  latter  perhaps  may  be  the  safer 
course  and  cannot  prejudice  the  rights  of  either  party.  Let  the  or- 
der be  entered  accordingly. 


CASES  IN  CHANCERY.  36:i 


Nathaniel  Weed, Harvey  Weed  and  Henry  W.  Barnes,  vs.  James  First  circuii. 
Lyon,  Thomas  Beals,  Lemuel  Goodell  and  Jonas  H.  Titus.      v^^/"^ 

Weed, 
rs. 
The  act  of  April  12,  IS-27.  entitled  "  an  act  concernin?  imrtgages,  "  prescribes  the  mannej  in         i,yon. 

wliich  mortgages  may  he  registered,  and  being  an  act  expressly  in  relation  to  mortgages,  and 
general  in  its  terms,  is  not  controlled  in  relation  to  the  record  of  montages  hy  the  act  of  the 
aamedate,  en.itled  "an  act  concerning  ilep.ls  and  conveyances  ;"  and  therefore  where  a  mort- 
gage was  registered  according  to  the  requirements  of  the  first  mentioned  act:  it  was  held  to 
■  be  a  legal  and  valid  registry,  and  constructive  notice  under  the  statute  to  a  subsequent  mort- 
gagee or  grantee  of  the  same  oremises. 

The  bill  of  complaint  in  this  case  was  filed  Nov.  16,  1810,  and  sets 
forth  that  on  the  6th  day  of  June,  1837,  John  Hale  was  indebted  to 
complainants,  in  the  sum  of  §3038,37,  for  goods,  &c.,  and  the  said 
Hale  being  seized  of,  or  pretending  to  be  seized  of  the  fee  of  lots  16, 
17,  and  18,  on  the  Military  Reservation,  so  called,  on  the  south  side 
of  Congress  street,  in  the  city  of  Detroit,  free  from  all  incumbrance, 
executed  with  his  wife  Felicite,  a  mortgage  on  the  premises  which 
was  recorded  in  the  office  of  Register  of  Deeds  for  the  county  of 
Wayne,  in  liber  eight,  on  folio  343  on  the  17th  day  of  June,  1837. 

That  default  having  been  made  in  the  payment  of  the  bond  and 
mortgage,  a  foreclosure  was  commenced  by  f\dvertisement  on  the  17lh 
day  of  June,  1839,  and  the  lots  were  struck  off  to  the  complainants, 
and  they  became  the  purchasers,  on  the  31st  day  of  August,  1839, 
and  received  a  certificate  from  the  Sheriff,  "that  unless  the  land  was 
"redeemed  according  to  law,  the  purchasers  would  be  entitled  to  a 
"  deed  in  two  years  from  the  date  of  said  purchase  ;  "  that  the  certifi- 
cate of  sale  from  the  Sheriff  was  duly  recorded  in  the  office  of  Re- 
gister of  Deeds  of  the  county  of  Wayne,  that  the  property  had 
not  been  redeemed,  and  there  was  no  probability  of  its  being 
redeemed,  as  Hale,  the  mortgagor,  was  dead,  and  his  estate  in- 
solvent, and  complainants  aver  that  they  hold  no  other  security 
for  the  payment  of  the  demand  or  debt,  or  any  part  thereof — 
The  bill  then  states  that  complainants  were  greatly  surprised  re- 
cently to  learn  there  was  a  prior  incumbrance  in  favor  of  the  defen- 
dant, Lyon,  which  was  made  about  the  13th  November,  1828  ;  and 
upon  examing  the  records  of  Wayne  county,  they  find  such  to  be  the 


364  casp:s  in  chancery. 

First  Circuit  fact,  and  that  certain  proceedings  were  instituted  in  behalf  of  said 
^"^^^^0^  Lyon,  to  foreclose  the  mortgage,  and  that  the  said  premises  were  bid 
L^^n,  off  on  the  21st  of  November,  1S33,  lot  16,  for  $700,  lot  17,  for  $700 
lot  18,  for  $1128,48,  and  that  the  Sheriff  gave  a  certificate  stating 
that  James  Lyon,  the  purchaser,  would  be  entitled  to  a  deed,  unless 
previously  redeemed  according  to  law.  An  assignment  was  made  in 
January,  1840,  to  Thomas  Beals,  by  Lyon,  and  the  complainants 
charge  that  Beals  or  Lyon  contemplate  applying  to  the  Sheriff  of  the 
county  of  Wayne,  for  a  deed,  on  the  pretence  that  the  premises  have 
not  been  redeemed,  thereby  utterly  disregarding  the  rights  and  inter- 
ests of  the  complainants,  and  they  charge  if  such  deed  is  procured,  it 
would  prejudice  their  claim  on  the  premises. 

The  complainants  then  set  forth  that  it  was  provided  in  an  act  of 
the  legislature,  that  there  should  be  a  City  Register's  office  in  the  city 
of  Detroit,  which  law  was  in  force  at  the  time  of  the  execution  of'  said 
mortgage  to  Lyon,  requiring  it  to  be  recorded  in  the  City  Register's 
office,  and  declaring  such  conveyance  to  be  fraudulent  and  void,  un- 
less it  should  be  recorded  in  the  City  Register's  office,  before  the  -^re- 
cording "  of  the  deed  or  conveyance  of  a  subsequent  purchaser  or 
mortgagee.  They  then  state  that  at  the  time  the  complainants  took 
their  mortgage  they  exainined  the  City  Records,  and  that  Lyon's  mort- 
gage never  was  recorded  in  the  office  of  the  City  Register,  and  that 
they  had  no  knowledge  of  the  same  until  June,  1840,  and  they  claim 
that  the  Lyon  mortgage  should  be  considered  as  fraudulent  and  void. 

Bill  charges  that  the  statuory  foreclosure  is  void  as  against  the  com- 
plainants, for  the  reason  that  the  mortgage  of  Lyon  was  not  recorded 
in  the  City  Registry.  It  also  charges  the  foreclosure  is  void  for  irre- 
gularity, is  specified,  and  prays  that  the  mortgage  made  by  Hale  and 
wife  to  Lyon,  be  adjudged  null  and  void  as  against  the  complainants, 
or  considered  as  subject  to  complainants  mortgage  ;  and  that  the  stat- 
uory foreclosure  be  set  aside  and  declared  void,  and  for  other  relief. 

The  defendants  demurred. 

H.  N.  Walker,  in  support  of  the  demurrer. 

A.  D.  Fraser,  Geo.  C.  Bates,  contra. 

The  Chancellor.— The   act  of  April  12, 1827,  entitled  "  an  act 
concerning  mortgages,  "  prescribes  the  manner  in  which  mortgages 


CASES  IN  CHANCP^RY.  365 

may  be  registered.     This  being  an  act  expressly  in  relation  to  mort-  ^''■"  Circuit 
gages,  and  general  in  its  terms,  is  not  controlled  in  relation  to  the  re-      weed, 
cord  of  mortgages  by  the  act  of  the  same  date,  entitled  "  an  act  con-      Lyon- 
cerning  deeds  and  conveyances."     Therefore  the  record  of  the  mort- 
gage of  Lyon  in  the  County  Registry,  according  to  the  requirements 
of  the  act  first  mentioned  was  legal  and  valid,  and  a  constructive  no- 
tice under  the  statute  to  any  subsequent  mortgagee  or  grantee  of  the 
same  premises.     As   this  conclusion  upon  the  construction    of  these 
statutes  is  conclusive  upon  the  equity  of  the  case   made  by  the  bill, 
the  demurrer  must  be  allowed  and  the  bill  dismissed. 
Bill  dismissed. 


366  CASES  IN  CHANCERY. 


First  Circuit.  MacK  &  DaVIS   VS.  EllIS  DoTY. 

Mack.       rpjijg  joujj  ^viu  not  relieve  against  a  judgment  at  law  on  the  ground  of  its  being  contrary  to  e- 
Doiy.  quily.  unless  the  defendant  was  ignorant  of  the  fact  in  question,  pending  the  suit,  or  ihe  de- 

fence could  not  be  received  as  a  defence  at  law,  or  unless  without  any  neglect  or  default  on 
the  part  of  the  defendant,  he  was  prevented  by  fraud  or  accident,  or  the  act  of  ihe  opposite 
party,  from  availing  himself  of  his  defence.  This  has  been  frequently  so  decided  by  this 
court. 
But  where  (he  defendants  were  prevented  from  making  their  defence  at  law  by  the  acts  of  the 
plaintiff  until  the  only  witness,  by  which  tlie  defence  could  be  proved,  was  dead,  and  a  resort 
to  this  court,  in  consequence  thereof,  l)ecome  indispensable;  it  was  held  that  the  complain- 
ants were  entitled  to  relief  in  this  court,  and  that  it  was  not  necessary  for  them  to  take  an  ap- 
peal, and  then  apply  to  this  court  for  a  discovery,  in  order  to  entitle  them  to  tliat  relief. 

Where  it  appeared  by  the  bill  that  the  complainants  became  security  for  a  third  person  to  the 
defendant  on  two  promissory  notes,  and  that  the  defendant  extended  the  time  of  payment  three 
several  limes  for  ninety  days  each,  without  the  knowledge  or  assent  of  the  sureties,  and  the 
maker  of  the  notes  at  the  time  of  the  extension  was  able  to  pay,  but  at  the  time  to  which  pay- 
ment had  been  extended,  he  had  become  insolvent,  and  the  defendant  had  commenced  two 
several  suits  before  a  justice  of  the  peace  to  recover  the  amount  of  the  notes  against  the  sure, 
ties,  and  they  appeared  and  defended,  and  after  the  testimony  was  taken,  the  defendant  who 
was  plaintiff  in  the  justices  court  discontinued  his  suits,  and  after  the  decease  of  the  only  wit- 
ness on  the  part  of  the  defence,  new  suits  were  commenced,  upon  which  judgments  were  re- 
covered, the  suits  being  undefended  ;  upon  demurrer,  it  was  held,  that  the  case  made  by  the 
bill  was  such  as  entitled  the  complainants  to  relief  in  equity,  and  that  it  was  competent  for 
this  court  to  afford  that  relief  in  any  stage  of  the  proceedings  as  weU  after  as  before  judg- 
ments at  law. 

Demurrer  to  a  bill  for  discovery  and  relief  against  judgments  at 
law.  The  opinion  of  the  court  contains  a  sufficient  statement  of  the 
case. 

A.  D.  Eraser  in  support  of  the  demurrer. 

Bill  seeks  to  enjoin  two  judgments  recovered  before  a  Justice  of 
the  Peace  by  default. 

The  fact  alledgcd,  might  constitute  a  good  defence  at  law  if  plea- 
ded. No  reason  is  assigned  for  not  making  a  defence  at  law,  nor 
does  it  appear  why  a  discovery  was  not  sought  while  the  action  was 
pending  at  law,  and  before  judgment  rendered. 

It  is  conceded  that  the  court  would  coerce  a  discovery  in  aid  of  in- 
ferior courts,  and  that  the  amount  in  controversy  alone  constitutes 
the  test  of  jurisdiction.     At  all  events  it  was  the  duty  of  the  complain- 


CASES  IN  CHANCERY.  3G7 

ants  to  have  appealed  to  the  Circuit  Court,  and  ihen  come  to  this  court  Fimcircuu. 
for   a  discovery.     1  Eq.  Abr.  131  ;  Jer.  Eq.  Jur.  268,-9;   1  Madd.      ^j.^^.^ 
Ch.  195  ;  1  Chil.Dlg.  591,  Sfc.  ;  1  Paige  287.  „',;,, 

This  court  will  not  afford  relief  against  a  judgment  at  law,  on  the 
ground  of  ignorance  of  facts,  mismanagement  of  Attorney,  not  even 
when  perjury  has  been  committed.  "  There  must  be  a  clear  case, 
of  accident,  surprise,  or  fraud  before  equity  will  interfere."  2  Vcrn. 
G96;  6  J.  C.  R.  87;  10  Pet.  R.  505;  Fonb.  26,27,  656,-7;  2 
Paige  321 ;  1  J.  Cas.  492,  502 ;  3  J.  C.  R.  352  ;  1  J.  C.  R. 
51,  395,  465,  320  ;  4  Id.  566,  510;  7  Id.  135,  337  ;  1  Johns'  Dig. 
1006. 

The  parties  should  have  put  themselves  in  a  situation  to  try  the 
case  by  filing  a  plea,     6  J.  C.  R.  480-1. 

As  to  matter  beneath  the  jurisdiction  of  the  court.  4  J.  C.  R. 
186. 

Goodwin  &  Hand,  contra. 

If  an  obligee  does  an  act  to  the  injury  of  the  surety,  or  varies  the 
terms  of  his  obligations,  or  enlarges  the  time  of  performance  without 
his  consent,  the  surety  will  be  discharged.  1  Law.  Lib.  68,  70,  73 
75,  76,  77;  2  Bro.  C.  C.  579;  6  Dow.  540;  2  Ves.,  540, 
10  J.  R.  587;  'SKent  HI  ;  12  Wheat.  554;  Chit,  on  Bills,  (8th 
ed.)  442,  and  cases  cited;  2  Swanst.'J)29 ;  2  Hov.  on  Fraud  71 
and  cases  oiled  ;  4  Barn,  c^  Cres.  506. 

The  rules  as  to  the  relief  of  a  surety  are  the  same  in  a  Court  of 
Equity  as  in  a  court  of  law,  when  the  facts  are  the  same.  2  J.  C.  R. 
554  :  17  J.  R.  384. 

When  the  sureties  on  the  face  of  the  instrument  appear  as  sureties 
the  defence  may  be  set  up  at  law  ;  when  they  do  not  so  appear,  it  is 
doubtful  as  to  whether  the  defence  be  available  at  law;  in  such  case 
the  jurisdiction  of  a  Court  of  Equity  is  undoubted,  and  in  the  other 
case  this  court  would  seem  to  have  a  concurrent  jurisdiction  especial- 
ly when  a  discovery  is  necessary.  In  this  case  the  character  of  the 
complainants  as  securities  does  not  appear  on  the  notes.  1  Laio  Lib. 
68  ;  4  Barji.  ^  Cres.  506  ;  2  Swanst.  539. 

In  equity  persons  appearing  to  be  principals  are  permitted  to  prove 

themselves  sureties.     1  Latv  Library  69. 
Vol.  I.  47 


368  CASES  IN  CHANCERY. 

First  Circuit      fp^g  CHANCELLOR. — The  bill  alleges  that  the  complainants  became 
Macic.      sureties  for  one  McKinney,  to  Doty,  upon  two  promissory  notes,  for 
Uoiy.       fi^fy  dollars  each.     Doty  at  three  several  times  extended  the  payment 
for  ninety  days  each,  without  the  knowledge  or  assent  of  the  com- 
plainants.    That  at  the  lime  said  extension  was  granted,  McKinney 
was  able  to  pay,  but  after  the  tiine  to  which   payment  had  been  ex- 
tended by  Doty  had  elapsed,  was  insolvent.     That  at  two  several 
times  Doty  commenced  suits  upon   said  notes   before  Robert  Abbott, 
Magistrate.     That  the  complainants  appeared  and  set  up  their  defence 
to  wit :  that  they   were    sureties,  and   the  extension  of  the  time  of 
payment  by  Doty.     That  the  only  witness  to   support  their  defence, 
(the  agreement  to  extend  the  time  of  payment)  was  one  Sidney   S. 
Hawkins,  (since  deceased,)  who  acted  as  the  agent  of  McKinney,  in 
that   behalf  and  was  on  one  occasion  sworn,  and  gave  his  testimony  ; 
and  after  the  witness  was  examined,  Doty  discontinued  his  suit :  That 
the  parties  appeared  on  both  occasions  and  were  ready  to  make  their 
defence,  &c.,  and  the  suits  were  discontinued.     That  after  the  decease 
of  said  Hawkins,  the   only  witness,  new  suits  were  commenced,  on 
which  judgments  were    recovered,  the   said  suits  being  undefended. 
To  this  bill  there  is  a  general  demurrer.     The  ground  of  the  defence 
is  that  this  court  will  not  relieve  against  a  judgment   at  law  on   the 
ground  of  its  being  contrary   to  equity,  unless  the  defendant  in   the 
judgment,  was  ignorant  of  the    fact  in   question,  pending  the  suit,  or 
it  could  not  be  received  as  a  defence  at  law,  or  unless  without  any 
neglect  or  default  on  his  part,  he  was  prevented  by  fraud,  or  accident, 
or  the  act  of  the  opposite  party,  from  availing  himself  of  the  defence. 
This  is  undoubtedly  the  true  rule,  it  has  been  frequently  so  held  by 
this  court.     See  Barrows  \s.  Doty,  ante  page  1 ;   Wright  \s.  King, 
ante  page  12  and  note  on  pages  17,  18. 

It  is  insisted,  however,  that  this  case  does  not  come  within  it. — 
That  the  defendants  below  have  been  prevented  from  making  their 
defence  by  repeated  discontinuances,  when  the  parties  appeared  to 
make  their  defence,  until  the  death  of  the  only  witness.  That  from 
the  constitution  of  Justices'  Courts,  a  continuance  cannot  be  had  for  a 
sufficient  time  to  obtain  a  discovery.  That  Courts  of  Chancery  in- 
terfere with  reluctance  with  inferior  jurisdictions,  and  that  this  being 


CASES  IN  CHANCERY.  369 

a  case  of  original  Chancery  jurisdiction,  this  court  should  now  enter-  F'"t  Circuit 
tain  this  bill  and  grant  relief.     In  support  of  these  grounds,  the  cases      ji^.^k. 
of  Rathbone  vs.  Warren,    10   J.  R.    396;  Boijce's  Executors  vs.     Doty. 
Grundy  S  Pet.  R.  214:;  2  Sivansl.    539,  are   cited.     It  is  clear  from 
the  case  made  by  the  bill,  that  the  complainants  were  discharged  from 
their  liability.     It  is  also  undoubtedly  true  that  Courts   of  Chancery 
have  always  sustained  their  jurisdiction   in  this  class  of  cases.     A 
Court  of  Chancery   was  formerly   the  only  tribunal   which  could 
afford  adequate  relief.     But  recently   courts   of  law  have  also  giv- 
en effect  to   detences   of  this  kind.     The  Court  of  Chancery   hav- 
ing originally  exclusive  jurisdiction,  still  retains  it.     But  if  the  party 
has  a  good  defence  at  law,  and  it  is  in  his  power  to  make  it  there,  with- 
out a  resort  to  this  court ;  and  he  permits  a  judgment  to  pass  against 
him,  a  Court  of  Chancery  would  not  relieve  him.     It  is  apparent  from 
the  case  .as  made,  that  the  defendants  by  the  act  of  Doty,  af:er  having 
two  suits  commenced,  at  two  several  times  were  deprived  of  making 
their  defence,  by  the  discontinuances,  until  the  death  of  their  only  wit- 
ness.    That  a  resort  to  this  court   was   indispensable,  and  that   this 
necessity  has  resulted  from  the  act  of  Doty,  the  plaintiff  below.     The 
only  doubt  in    the  case  is,  were  the   parties   bound  to  apply  to   this 
court  before  judgment  rendered  in  the  court  below.     It  has  been  urged 
that  the  defendants  below   could   have  taken   appeals  to  the  Circuit 
Court,  and  could  then  have  applied  to  this  court  for  a  discovery,  and 
would  have  been  entitled  to  their  remedy.     I  have  entertained  much 
doubt  whether  this  case  comes  within  the  exceptions  to  the   general 
rule  as  stated   in  the  case   in  10   J.  R.    590,  and  3  Pet.  iJ.  214. 
Was  it  necessary  ?  -was  it  incumbent  upon  the  parties  to   adopt   this 
more  expensive  and  circuitous  proceeding  to  make  their  defence,  af- 
ter having  on  two  several  occasions  appeared,  in  both  suits,  made  their 
defence,  and  produced  their  witness  1     I  am  inclined  to  think  not. —    . 
The  necessity  for  a  resort  here  at  all,  has  been  caused  by  this  extra- 
ordinary and  unjust  proceeding  on  the  part  of  Doty,  ihe   defendant. 
In  the   case  in  3  Pet.,  R.  214,  where  the  court  did  relieve  against  a 
judgment,  the  judge  in  delivering  the  opinion  of  the  court,  says:   "It 
is  not  enough  that  there  is  a  remedy  at  law,  it  must  be  plain  and  ad- 
equate; in  other  words  as  practical  and  as  efficient  to  the  ends  of  jus- 
lice  and  its  prompt  administration,  as   the  remedy  in  equity.  "     He 


370  CASES  IN  CHANCERY. 

Firsicircuit  says,  also  :     "  Although  the  defence  might  have  been   made  at  law, 
Mack      *^®  complainant  would  still  have  been  left  to  renew  the  contest  upon 
Doty,     a  series  of  suits  ;  and  that  probably  after  the  death   of  witnesses.  " 
The  casein  10  J.  R.  was  a  case  against  bail ;  where   the  time  had 
been  extended.     There  had  been  a  judgment   in  the  Supreme   Court 
against  the  bail,  but  relief  still  was  granted.     Here  the  complainants 
were  prevented  from  making  their  defence   by  the  act  of  the  defen- 
dant.    This  was  a  case  in  which  it  would,  have  been  competent  for 
this  court  to   afford   relief  in  any  stage  of   the  proceedings  and 
the  resort  here  having  been  rendered  indispensable  by  the  act  of  Do- 
ty, it  will  be  unjust  and  inequitable  to  permit  him  to  take  advantage 
of  his  own  wrong. 
Demurrer  overruled , 


CASES  IN  CHANCERY.  371 


RicHAED  H.  Connor  and  Others,  Administrators  of  Henry  Connor  Firsi  Circuit 

vs.  John  Allen.  n^*^-/^^ 

Coiinnr. 
A  surviving  partner  having  the  legal  right  to  the  possession  of  the  partnership  property,  the       Mien. 

court  will  not  deprive  liim  of  that  right,  unless  upon  proof  of  inisraanagcrnent  or  danger  to 

the  partnership  etTccts. 
Affidavits  are  not  admissible  to  contradict  the  answer  upon  a  motion  for  the  appointment  of  a 

receiver. 

Bill  States  that  in  1838,  Henry  Connor  and  John  Allen  were  part- 
nerSjOwning  certain  mills  andother  property  to  a  considerable  amount, 
that  they  carried  on  the  milling  business  as  partners,  until  Sep- 
tember, 184K),  when  Connor  died  ;  that  Allen  had  always  been  in  ac- 
tual possession  and  occupation  of  the  premises,  and  still  was  in  actual 
possession  and  occupation  and  was  running  the  mills  and  manufactur- 
ing lumber  from  logs  cut  on  the  partnership  lands,  and  on  the  lands 
belonging  to  Connor  alone,  and  was  using  and  appropriating  the  pro- 
ceeds to  his  own  use  and  benefit.  Bill  prays  for  an  account,  injunc- 
tion and  receiver. 

An  injunction  was  granted. 

The  answer  denies  the  entire  equity  of  the  bill,  and  states  that  the 
partnership  is  largely  indebted  to  the  defendant. 

The  defendant  moved  to  dissolve  the  injunction  on  the  coming  in 
of  the  answer. 

The  motion  for  a  receiver,  and  to  dissolve  the  injunction  both  came 
on  to  be  heard  at  the  same  time. 

A.  C.  Smith,  for  complainants. 

Van  Dvke  &  Harrington,  for  defendant. 

The  Chancellor. — The  answer  denies  the  whole  equity  of  the 
bill,  and  states  the  further  fact  that  the  partnership  is  indebted  to  him 
in  a  considerable  amount.  The  surviving  partner  having  the  legal 
right  to  the  possession  of  the  property,  the  court  will  not  deprive  him 
of  that  right  unless  upon  proof  of  mismanagement  or  danger  to  the 
partnership  effects.     Gow  on  Part.,  382. 

The  affidavits  are  not  admissible  in  contradiction  to  the  answer  up- 


372  CASES  IN  CHANCERY. 

First  Circuit,  q.^  ^\^Q  motion  to  dissolve  the  injunction,  and  the  answer  being  full  the 
iniunction  must  be  dissolved.  Affidavits  may  be  read  upon  a  motion 
for  the  appointment  of  a  receiver.  But  I  do  not  think  the  affidavits 
presented  show  such  a  case  of  mismanagement  or  danger  to  the  fund, 
aswill  justify  the  court  in  the  appointment  of  a  receiver  under  the 
rule  as  before  stated. 
Injunction  dissolved. 


vs. 
Allen. 


CASES  IN  CHANCERY.  378 


Jesse  Millard  vs.  Norton  R.  Ramsdell,  and  others,  and  Nor- 2"'^  *"'''''""• 
TON  U.  Ramsdell  vs.  Jesse   Millard  and  others,  v-^^v^'W/ 

Millard. 

CB. 

Where  the  complainant  alleged  in  his  bill  a  right  to  certain  Bharcs  of  partnership  property  pur-  nanisilell.  &■ 
chased  of  one  of  the  partners,  and  the  defendant  denied  his  right,  and  by  way  of  avoidance     "'  '^ 
set  up  an  independent  contract  to  show  himself  entitled  to  one-half  of  the  sliares,  the  answer      IMillard. 
was  ketd  as  nut  comhig  within  the  rule  of  being  directly  responsive  to  ibe  allegations  of  the 
bill,  and  that  the  new  contract  set  out  should  be  proved. 

If  an  agreement  to  convey  real  estate  be  vague  and  uncertain,  or  the  evidence  to  establish  it  is 
insufficient,  a  Court  of  Equity  will  not  enforce  it,  but  will  leave  the  party  to  his  legal  remedy; 
and  in  order  to  lake  the  case  out  of  the  statute  of  frauds,  the  acts  of  part  performance  must 
unequivocally  result  from  the  agreement  alledged. 

AVhere  one  of  several  partners  dies  and  the  business  ot  the  copartnership  is  carried  on  by  the 
surviving  partners  without  tlieassent  of  the  representatives,  they  have  as  a  genera;  rule  their 
election  to  demand  Interest  on  the  amount  of  the  share  of  the  deceased,  or  lake  a  share  of  the 
profits;  but  where  the  interest  of  the  deceased  partuer  had  become  vested  in  one  of  the  sur- 
viving partners  who  consented  to  the  continuance  of  the  copartnership,  it  was  held  the  rule 
did  not  apply. 

The  original  bill  in  this  case  was  filed  in  June,  1837,  by  Salmon 
H.  Matthews. 

In  July  following,  a  cross  bill  was  filed  by  Millard  the  principal 
defendant  in  the  original  suit ;  answei-s  were  put  in  by  Matthews 
and  Millard  respectively  ;  as  to  the  others  the  bills  were  taken  j^ro 
confesso. 

Subsequent  to  the  putting  in  of  the  answers  in  both  cases,  Mat- 
thews died,  and  the  suits  were  revived  and  continued  by  and  against 
his  personal  representatives,  Norton  R.  Ramsdell  and  Asa  Willi- 
ams, administrators,  and  Arabella  Matthews,  anministratrix. 

Both  suits  were  for  the  same  object. 

It  appears  from  the  cross  bill  that  in  November,  1835,  Matthews 
and  Edwin  Bond,  one  of  the  defendants  entered  into  a  copartnership 
with  Millard.  The  articles  of  copartnership  were  reduced  to  writing, 
and  are  as  follows  : 

"  This  article  of  agreement  made  the  first  day  of  November,  1835, 
"  between  Jesse  Millard,  lute  of  Auburn  N.  Y.,  and  Salmon  H.  Mat- 
"  thews  and  Edwin  Bond  of  Dexter  village  M.  T.  Witnesseth, 
"that  the  said  parties  have  this  day  mutually  entered  into  copartner- 
"  ship,  under  the  firm  of  J.  Millard  &  Co.,  for  the  purpose  of  carry- 


3'J'4  CASES  IN  CHANCERY. 

2nd  Circuit,  u  j^g  q^  t}^g  mercantile  business  and  the  grist  mill  and  saw  mill  busi- 

'  Millard.     "  ness,  and  all  other  business  which  may  be,  by  the  said  firm,  consid- 

Ramsdeii.  &  *•  ered  necessary  in  connection  with  said  branches,  to  promote  the  in- 

itamsdell. 

vs.       "lerestof  said  firm,  for  the  term  of  four  years  from  the  above  date, 

Millard.  •' 

"  on  the  following  terms,  viz:  their  capital  is  to  be  !$21,000  or  $7000 
"  to  each  person. 

"     The  said  Matthews  and  Bond  now  own  in  the  said  village  of  Dex- 
"  ter,  a  grist  mill  and  saw  mill  and  a  tavern  stand,  and  the  necessary 
"  buildings  thereon,  containing  about  five  acres  of  land,  more  or  less, 
*♦  according  to  their  deed  of  said  property,  executed  to  them  by  Sam- 
*'  uel  W.  Dexter,  on  the  7th  day  of  April,  1334,  which  property,  to- 
"  gether  with  the  appurtenances  and  water   privileges  thereunto  be- 
"  longing,  is  estimated  at  fourteen  thousand  dollars,  which  they   said 
"  Matthews  and  Bond  are  to  furnish  as  a  capital  for  the  benefit  of  said 
"firm,  as  their  shares,  and  for  which,  whatever  may  be   due,  or  to 
"  become  due  to  said   Dexter,  they  the  said  Matthews  and  Bond,  are 
t'  themselves,  to  cause  to  be  punctually  paid  to  the  said  Dexter,  with- 
"  out  cost  or  inconvenience  to  the  said  firm  or  the  said  Millard. 
"     And  the  said  Millard  is  to  furnish  seven  thousand  dollars  worth  of 
•'  goods  as  his  share  of  said  capital  stock  of  said  firm,  and   the    said 
"  partners  are  mutually  bound  to  each  other  to  do  and  perform  all  ne- 
"  cessary  services  in  their  power,  for  the  promotion  of  the  above  busi- 
♦'  ness.     All  the  loss  or  gain  in  said  business  is  to  be  mutually  shared 
♦'  by  the  said  partners,  and  all  necessary  expenses  in  said  business  is 
"  to  be  borne  by  the  said  firm,  from  and  after  the  said  date  first  above 
"  mentioned. 

"  And  as  the  said  Matthews  and  Bond  are  indebted  to  the  said  S.  W. 
"  Dexter  for  the  said  premises  and  for  the  payment  of  said  debts, 
"they  have  executed  a  bond  and  mortgage  to  the  said  Dexter  for  the 
''  payment  thereof,  and  as  the  said  Millard  on  his  part  furnishes  his 
"share  of  the  said  capital  stock  at  the  commencement  of  said  firm. 
"  Now  therefore  it  is  hereby  agreed  by  the  said  Matthews  and  Bond, 
"  that  they  will  for  the  purpose  of  securing  said  Millard  against  any 
"loss  he  might  sustain  by  their  failing  to  pay  for  the  said  premises 
"according  to  the  condition  of  said  bond  and  mortgage,  to  execute 
"  to  him  the  said  Millard  a  warrantee  deed  of  said  premises,  and  they 
"  the  said  Matthews  and  Bond  also  agree,  that   in  case  of  their  fail- 


CASES  IN  CHANCERY.  375 

"  ure  as  aforesaid,  to  make  payment  for  said  premises  whereby  the  '^"''-  circuit 
*•  said  Millard's  interest  shall  be  injured,  that  then  in  such  case  he    j^jm^^rd. 
•'shall  have  a  claim  to  secure  to  himself  from  any  personal  property  Raing'eii.  & 
"in  the  possession  of  said  firm,  or  from  the  property  owned  by  either    '   „s. 
"or  both  of  the  said  Matthews  and  Bond  in  their  private  capacity. 
"     In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands 
"  and  seals  at  Doxier  village,  on  the  date  first  above  mentioned,  in 
"  presence  of  Chas.  D.  Millard. 

(Signed.)  "J.  MILLARD, 

S.  H.  MATTHEWS, 
EDWIN  BOND." 

The  cross  bill  states  that  Matthews  and  Bond  were  at  the  time  of 
executing  said  agreement  joint  owners  of  said  real  estate,  and  co_ 
partners  in  the  grist  and  saw  mill  business  and  tavern,  under  the  firm 
and  style  of  Matthews  and  Bond — that  said  firm  were  then  indebted 
to  different  persons  in  a  considerable  amount ;  that  by  the  forma- 
tion of  said  copartnership  the  firm  of  Matthews  and  Bond  was  dis- 
solved. 

That  Millard  did  furnish  his  share  of  capital  according  to  agree- 
ment, and  the  goods  were  placed  in  the  store  of  the  firm. 

That  Matthews  and  Bond  did  in  pursuance  of  the  agreement  on 
their  part  to  furnish  &c.,  on  the  12th  of  January,  1836,  execute  to 
Millard  a  deed  of  one  undivided  third  of  said  real  estate. 

That  at  the  time  of  the  execution  of  said  agreement,  said  Matthews 
and  Bond  proposed  to  Millard  that  he  should  become  joint  owner  with 
them  of  another  parcel  of  land  in  Dexter,  on  which  was  a  dwelling 
house  and  store,  &c.,  (the  Brower  lot,)  that  Matthews  and  Bond 
then  held  a  deed  of  the  same,  but  had  not  paid  the  purchase  money — 
that  it  was  agreed  that  Millard  should  own  one-third  of  it  and  pay 
one-third  of  the  said  purchase  money — thai  the  same  was  included 
in  the  said  deed  from  Matthews  and  Bond  to  Millard — that  part  of 
said  purchase  money  had  since  been  paid  out  of  the  partnership 
funds — the  remainder  not  yet  paid  and  not  all  due. 

Sets  out  the  covenants  in  said  deed  on  the  part  of  Matthews  and 
Bond,  in  liaec  verba. 

Covenants. 

First.  Seizin  in  said  Mathews  and  Bond. 

A^OL.  I.  48 


376  CASES  IN  CHANCERY. 

2nd  Circuit.       Secoud.  Freedom  from  incumbrances,  except  a  mortgage  to  Dex- 
■^-j;;;;^  ter  of  $10,750. 

R-in)s!^iei!  &       Third.  That  said  Mattliews  and  Bond  would  pay  said   mortgage 
^vs.     '  and  indemnify  Millard  against  the  same. 

Fourth.  Right  of  said  Matthews  and  Bond  to  sell. 
Fifth.  Covenant  of  warranty. 

That  said  deed  was  intended  as  an  absolute  conveyance  of  said 
one-third — that  said  Matthews  and  Bond  have  never  executed  ony 
deed  as  security  to  Millard,  as  against  the  Dexter  claim. 

That  the  partnership  commenced  immediately  on  executing  the 
agreement,  and  that  the  goods  were  offered  for  sale  in  the  store  of 
the  firm — that  the  same  had  been  replenished  from  time  to  time,  by 
and  on  account  of  the  firm — that  Matthews  and  Bond  had  at  all 
times  participated  in  the  profits  thereof. 

That  Matthews  and  Bond  were  not  acquainted  with  the  mercantile 
business,  and  therefore  chose  to  attend  to  the  other  branches  of  the 
business  of  the  firm,  and  that  Millard  should  attend  principally  to  the 
store. 

That  regular  invoices  were  made  of  the  ^7,000  worth  of  goods 
and  copied  into  a  book  in  the  store — and  that  similar  bills  were  made 
of  the  goods  since  purchased — and  that  all  of  the  bills  or  invoices 
were  kept  in  the  store  with  the  other  papers  of  the  firm — that  books 
of  account  and  a  cash  book,  &c.,  were  kept  in  the  store  and  re- 
mained there  up  to27lhof  June — and  that  Matthews  and  Bond  had  ac- 
cess to  them  at  all  times — that  said  invoice  book  was  delivered  to 
Matthews  at  his  request — that  Matthews  carried  it  away  and  still  has 
it. 

That  in  the  summer  of  1836,  an  addition  was  built  to  said  tavern 
house  by  the  firm  and  out  of  their  funds,  at  an  expense  of  about 
$1,000, — that  during  the  same  year  a  store  was  in  the  same  way 
built  on  said  five  acres  of  land,  at  an  expense  of  about  $3,000  ;  no 
account  was  kept  of  the  expense — that  about  the  1st  of  September, 
1836,  a  contract  was  made  by  Millard  and  Matthews  in  the  name  of 
the  firm  with  one  J.  Ranney  to  sell  him  a  village  lot  for  a  tannery, 
being  part  of  said  five  acres — which  contract  the  parties  agreed  to 
reduce  to  writing  at  some  future  time — that  the  same  has  not  yet 


CASES  IN  CHANCERY.  877 

been  done,  but  that  said  Ranney  has  taken  possession  of  the  lot  by  ^"^  circuit, 
the  concurrence   of  said  Matthews  and  Millard,  and  paid  part  of  the    yi^^uiTii. 
purchase  money  for  which  receipts  were  given  in  the  name  of  the  Rnnrs'ieii. 
firm,  and    the  money    appropriated   to  the  use  ot  the  firm — charges        t,. 

'  ir       1  Millurd. 

that  all  this  was  done  with  the  consent  and  approbation  ot  Matthews, 
and  that  Bond,  during  his  life  time,  and  Matthews  and  Millard  did 
agree  during  his  life  time  to  build  said  addition  and  said  store. 

That  said  firm  did  about  the  12th  of  January,  1836,  purchase  of 
S.  W.  Dexter  certain  premises  and  water  privilege,  contiguous  to 
the  village  on  Huron  river,  for  $3,000,  and  took  a  warrantee  deed — 
that  the  whole  of  the  purchase  money  is  \et  unpaid  and  not  yet  due 
— that  at  and  previous  to  the  commencement  of  the  partnership, 
Matthews  and  Bond  were  negotiating  with  Dexter  for  the  purchase 
from  him  of  one-halT  the  unsold  lots  of  Dexter  village,  and  also  for- 
ty or  fifty  acres  of  land  north  of  said  village — that  it  was  agreed 
between  Matthews  and  Bond  and  Millard,  that  the  latter  should  be 
admitted  to  participate  in  said  purchase — that  the  same  was  not  con- 
summated during  Bond's  life  time,  but  that  after  his  death  Matthews 
and  Millard  completed  the  purchase  in  their  own  names,  and  a  con- 
tract for  the  same  was  executed  by  said  Dexter,  Matthews  and  Mil- 
lard, whereby  Dexter  obligated  himself  to  execute  to  Millard  and 
Matthews  a  deed  of  the  same  upon  the  payment  of  $2,000,  that  the 
same  is  still  unpaid — that  the  said  premises  have  risen  in  value  and  are 
now  worth  at  least  $7,000. 

That  in  January,  1836,  Millard  had  occasion  to  go  to  the  state  of 
New  York  after  his  family,  and  to  purchase  goods  for  the  firm — that 
it  was  agreed  between  all  the  parties  that  he  should  go,  and  that  the 
business  should  be  left  in  charge  of  Matthews  and  Bond,  and  the 
clerks — that  Bond  died  during  Millard's  absence,  in  April  or  May, 
1836 — that  Millard  was  on  his  return  when  he  heard  of  his  death, 
and  immediately  returned. 

That  after  Bond's  death,  Millard  and  Matthews  agreed  to  con- 
tinue the  business  of  the  partnership  under  the  same  style  and  firm 
as  before,  and  for  their  joint  benefit — that  they  did  so — that  Bond 
left  certain  heirs — that  soon  after  his  death  it  was  agreed  between 
Matthews  and  Millard,  that  Matthews  should  purchase  of  the  heirs 
their  shares  or  interest  in  said  concern,  and  to  pay  for  the  same  out 


378  CASES  IN  CHANCERY. 

and  Circuit,  of  Malthews'  own  funds — tliat  Millard  should  pay  to  Matthews  one- 
Miiiard      half  of  the  purchase  money  and  expenses — that' Matthews  should  pro- 
RanTsdeii.    ceed  to  buv  out  the  same  on  the  best   terms  he  could,  in  the  names 
'^f  *^  ■  of  Matthews  and  Millard,  and  for  their  joint   benefit — that  Malthews 
should  be   allowed  to  absent  himself  a  sufficient  time  for  that  pur- 
pose. 

That  in  September  or  October,  1836,  Matthews  left  Dexter  to  go 
to  Massachusetts  for  the  purpose  of  buying  out  the  heirs  living  there 
— for  their  joint  benefit. 

That  Matthews  did  fraudulently  purchase  of  some  of  the  heirs 
their  interests  in  his  own  name  and  took  deeds  therefor  in  his  name 
alone — and  that  Matthews  claims,  that  by  virtue  of  said  deeds  he  is 
entitled  to  six  undivided  ninths  of  said  real  estate — and  in  right  of 
his  wife  to  a  life  estate  in  another  ninth — and  also  claims  to  be  bene- 
ficially interested  in  seven-ninths  of  the  personal  property  of  Bond, 
and  that  these  claims  arc  founded  on  the  following  deeds  and  releases, 
(setting  out  abstracts  of  the  deeds  by  the  names  of  parties,  dates, 
time  and  place  of  record  :) 

List  of  deeds  and  releases,  from  Richard  Bond  and  wife  ;  from  S. 
W.  Dexter  and  wife  ;  from  J.  Carrier  and  wife  ;  from  Q.  Hitchcock 
and  wife  ;  from  A.  Williams  and  wife  ;  from  Hannah  Bond. 

The  names  and  residence  of  Bond's  heirs  are  given — that  Russel 
Cooley  is  guardian  of  certain  minor  heirs,  (children  of  Benjamin 
Wing.) 

That  xMatthews  has  been  appointed  administrator  of  Bond. 

That  soon  after  Bond's  death,  his  brother  King  E.  Bond  died, 
leaving  his  wife  and  two  children  heirs — R.  Cooley  is  administra- 
tor. 

That  since  Matthews'  appointment  as  administrator  of  Bond,  he 
and  Millard  have  continued  the  business  as  before. 

That  Millard  has  never  drawn  from  the  partnership  more  than  his 
share  of  the  profits. 

That  soon  after  Matthews'  return  from  Massachusetts,  Millard 
learned  for  the  first  time  that  Matthews  had  taken  the  deeds  in  his  own 
name — that  Millard  trusted  to  his  good  faith  and  was  not  alarmed, 
until  about  February    1837,  when  in  a  conversation  with   Matthews, 


CASES  IN  CHANCERY.  379 

Millard  learned  for  the  first  time  that  he  intended  all  of  said  purcha-  -"'^  ^itc»u. 
ses  for  his  sole  benefit.  .Miii:,rd. 

That  the  real  estate  has  risen   in    value  greatly — and    was    then     R„"fden. 
worth  besides  the  erections  recently  made  §17,000.  'U. 

Miliard. 

That  Matthews  as  part  of  the  consideration  of  said  purchases  as- 
sumed the  debts  due  from  the  firm  of  Matthews  and  Bond. 

The  amount  of  consideration  expressed  in  the  several  deeds  from 
the  heirs  is  $'930 — that  Millard  has  offered  to  pay  to  Matthews  one- 
half  of  all  the  cost  of  said  shares,  and  demanded  a  deed  of  one-half 
thereof — that  Matthews  refused  to  make  the  deed. 

That  about  the  10th  of  June,  1837,  Millard  was  taken  ill  and  was 
confined  to  his  house  two  weeks — that  when  he  left  the  store  there 
was  a  large  stock  of  goods  on  hand — about  $10,000  worth — account 
books,  bills,  notes,  &c.  dsc,  to  the  amount  of  $15,000  or  $20,000, 
and  about  $2,000  in  cash. 

That  about  the  19th  of  June,  1837,  Matthews  took  from  the  store 
$1,000,  for  the  purpose  of  paying  a  bank  note  at  Washtenaw  bank 
due  from  the  firm — that  Millard  learned  afterwards  that  he  had  not 
paid  the  same. 

That  on  Sunday  evening  June  25,  Matthews  removed][the  books 
and  papers  from  the  store,  and  also  the  keys  to  the  safe,  and  on  Mon- 
day Matthews  dismissed  the  clerk  and  employed  another. 

That  at  this  time  there  was  in  the  store  about  $1,050  in  cash. 

That  during  Millard's  illness,  Matthews  took  and  appropriated  to 
his  own  use  large  sums  of  money. 

That  on  the  23th  of  June,  Millard  called  at  the  store  and  was  de- 
nied access  to  the  books  by  Matthews,  and  prevented  by  force  from 
making  any  examination. 

That  there  is  no  person  in  the  store  or  mills  to  look  after  the  in- 
terests of  Millard — that  Millard  is  unable  to  attend  to  the  same  in 
person — that  Matthews  refuses  to  permit  any  one,  &c. — that  the 
cash  receipts  in  the  store  are  about  eighty  dollars  per  day,  and 
that  on  the  evening  of  June  27th,  there  was  in  the  store  $800  in 
cash. 

That  Matthews  is  illiterate  and  incompetent  to  carry  on  the  busi- 
ness of  the  firm. 


&,  liainsdell. 

1}S. 

Millard. 


380  CASES  IN  CHANCERY. 

2nd  Circuit.      Charges  Matthews  with  combining  and  confederating  with  S.  W. 
^Ijry^  Dexter  and  Millicent  his  wife,  Richard  Bond  and  Mary  his  wife,  Jo- 

Millurd. 

Ramsdeii.   seph  Carrier  and  Polixiana  his  wife,  Quartus  Hitchcock  and  Arde- 
Ks.        lia  his  wife,  Asa  Williams  and  Hannah  his  wife,  Hannah  Bond,  and 
Arabella  Matthews,  wife  of  said  Matthews,  who  each  claim  as  heirs 
at  law  of  said  Bond,  &c.,  and  with  divers  others,  &c. 

That  Matthews  filed  a  bill,  &c.,  its  prayer,  &c. 

Requires  the  defendants  to  make  answer  without  oath — to  the  pre- 
mises. 

Prays  for  an  account,  that  Millard  may  be  decreed  entitled  to  one- 
half  of  the  profits  since  Bond's  death — for  the  establishment  of  said 
deed  from  Matthews  and  Bond  to  complainant  as  an  absolute  con- 
veyance— that  Matthews  be  decreed  to  convey  to  complainant  one- 
half  of  the  real  estate  purchased  of  Bond's  heirs — for  a  partition  of 
the  real  estate  or  sale — for  a  dissolution  of  partnership — and  for  the 
appointment  of  a  receiver — for  an  injunction  upon  Matthews. 

Abstract  of  answer  of  S.  H.  Matthews. 

The  answer  of  Matthews  admits  the  copartnership,  but  insists  that 
the  articles  were  entirely  drawn  up  by  complainant  in  an  artful 
manner,  and  designed  to  enable  him  to  take  advantage  of  defendant, 
&;c. 

Admits  that  previous  to  and  at  the  time  of  executing  said  articles, 
the  defendant  and  Edwin  Bond  were  joint  owners  of  the  five  acres 
of  land  in  bil'  mentioned,  and  were  copartners  in  grist  and  saw  mill 
and  tavern  stand  under  the  firm  of  Matthews  and  Bond,  and  tha* 
the  firm  were  then  indebted  as  in  the  bill  mentioned,  and  that  by  the 
formation  of  said  firm  of  J.  Millard  &  Co.,  the  firm  of  Matthews 
and  Bond  was  dissolved. 

Denies  that  complainant  ever  furnished  as  his  share  of  the  capi- 
tal stock  $7,000  worth  of  merchants'  goods,  admits  that  complainant 
did  shortly  after  the  execution  of  said  articles,  furnish  and  place  in 
the  store  of  the  firm  a  stock  of  goods  not  exceeding  as  defendant 
verily  believes  $4,000  or  $5,000  worth,  and  by  far  the  greater  pro- 
portion thereof  were  remnants  and  other  refuse  goods  of  an  old  stock 
unsuitable  to  the  demand  and  difTerent  in  nature,  quality  and  value 
from  what  the  complainant  had  promised  to  put  into  the  partnership, 


CASES  IN  CHANCERY.  381 

and  such  as  did  not  according  to  their  agreement  entitle  him  to  one-  ^"''  *^'"=""- 
third  of  the  rents  of  the  mills  and  tavern,  the  said  agreement  in  fact    j\i,ii;ini. 
imposing  on  complainant  an  obligation  to  furnish  a  substantial  and  Rams.ieii, 
tresh  stock  of  goods  suitable  lo  the  wants  of  the  country,  and  worth  at       vs. 
first  cost  prices  and  transportation  S7,000. 

Admits  that  after  the  execution  of  the  articles,  and  in  pursuance 
of  the  agreement  therein,  defendant  and  wife  and  Edwin  Bond  exe- 
cuted a  deed  in  fee  simple  of  one-third  of  tlie  five  acres  as  in  the  bill 
stated,  but  says  that  the  deed  though  absolute  in  terms,  was  not  in. 
tended  to  be  so  in  fact,  but  only  to  operate  as  a  security  to  indemnify 
complainant  against  the  claim  of  S.  W.  Dexter  in  the  articles  men- 
tioned; and  to  a  participation  of  one-third  of  the  rents  and  profits  of 
said  property  for  four  years,  and  complainant  acquired  an  estate 
therein  only  for  the  aforesaid  purposes  upon  the  express  condition 
that  money  to  pay  Dexter  should  be  drawn  from  the  partnership 
funds,  and  on  the  faith  that  complainant  wonld  fully  comply  with  his 
aforesaid  contract  by  delivery  of  the  stipulated  stock  of  goods,  &;c.^ 
and  the  property  was  estimated  at  a  price  below  its  real  value,  on 
the  further  faith  that  the  goods  would  be  of  the  quality  and  prices  be- 
fore mentioned;  and  states  that  the  deed  was  drawn  by  complainant, 
does  not  recollect  what  the  covenants  were. 

Admits  that  at  the  execution  of  the  copartnership  articles,  defen- 
dant and  Bond  proposed  to  complainant  to  become  jointly  interested 
with  them  in  the  Brower  lot — that  defendant  and  Bond  then  held  a 
deed  therefor  as  in  bill  stated,  and  subject  to  the  payments  therein 
mentioned,  for  which  three  weeks  notice  were  given.  That  com- 
plainant at  the  time  mentioned  in  bill,  concluded  to  purchase  and 
pay  as  therein  stated,  and  that  the  first  of  said  notes  has  been  paid, 
the  others  are  unpaid,  and  only  one  due. 

That  defendant  cannot  state  positively  what  covenants  are  con- 
tained in  the  deed,  but  believes  they  are  as  set  forth  in  the  bill,  that 
the  deed  is  recorded.  Denies  that  the  deed  was  intended  to  be  abso- 
lute, but' avers  that  it  was  as  security  as  aforesaid,  and  denies  that 
defendant  and  Bond  or  either  of  them  have  executed  to  complainant 
a  warrantee  deed  of  the  premises  mentioned  in  copartnership  arti- 
cles except  as  security.     Avers  that  there  never  was  any  conversa- 


CASES  IN  CHANCERY. 

,  tion  between  the  parlies  by  which  complainant  was  entitled  to  any 
Miiiard.     other  deed  than  the  one  he  received,  nor  was  there  ever  any  com- 
Uam'^iieii.  plaint  by  complainant  that  he  had  not  received  all  nnd  every  deed  he 

&  Uamsdell.  ' 

ys-        was  entitled  to. 

That  complainant  has  in  fact  received  the  deed  mentioned  in  the 
articles  of  agreement  and  none  other,  and  for  the  sole  purpose  there- 
in mentioned,  and  he  never  demanded  any  other. 

That  the  copartnership  of  J.  Millard  &  Co.,  commenced  imme- 
diately on  the  execution  of  the  articles  of  agreement,  and  goods  of 
said  firm  were  sold  at  their  store  and  replenished  from  time  to  time 
from  different  places,  but  to  what  extent  defendant  cannot  state;  that 
defendant  has  received  or  expects  to  receive  his  own  share  of  the 
profits,  and  also  seven-ninths  of  those  due  to  Bond  at  his  death  to  which 
he  is  entitled  in  virtue  of  the  several  assignments,  as  also  two-ninths 
more  which  hs  has  this  day  purchased,  being  all  of  said  Bond's  inte- 
rest, but  denies  that  complainant  put  in  $7,000  worth  of  goods,  or 
that  defendant  has  shared  in  the  profits  of  such  an  amount. 

Admits  that  defendant  and  Bond  were  unacquainted  with  mercan- 
tile business,  and  that  he  chose  to  attend  to  the  other  branches  of  the 
business,  and  that  complainant  should  give  his  attention  to  the  store, 
intending  thereby  that  such  attention  should  be  proper,  &c.,  and  that 
complainant  would  be  responsible  for  such  attention,  but  defendant 
avers  that  the  store  has  been  very  inadequately  and  improperly  at- 
tended by  complainant  and  sons,  with  complainants'  knowledge  and 
consent,  and  to  the  detriment  of  the  concern. 

Denies  that  regular  and  correct  bills  or  invoices  were  made  of  the 
,  $7000  worth  of  goods,  so  said  to  be  furnished  by  complainant,  and 

were  copied  into  a  book  in  the  store.  Denies  that  the  stock  was 
at  all  furnished.  Defendant  says  he  never  knew  until  the  time 
after  mentioned,  that  any  invoice  or  bill  of  any  kind  had  been  made 
by  complainant  of  the  goods  which  he  did  furnish.  Says  that  no  bills 
of  the  goods  so  furnished  were  ever  made  out  by  the  persons  who  sold 
the  same  to  complainant,  as  defendant  verily  believes,  and  if  they 
were  made  out  they  were  never  shewn  to,  or  seen  by  defendant,  and 
defendant  does  not  believe  and  avers  that  there  never  was  a  just  and 
true  invoice  made  out  by  complainant,  or  on  his  behalf  of  said  goods. 


CA.SES  IN  CHANCERY.  383 

But  defendant  admits  that  about  the  sixteenth  of  June  last,  complain-  ^"'^  circuit, 
ant  showed  defendant  a  small  book  purporting  to  be  an    inventory  of    \|iii„rd. 
eoods  made  out  at   Auburn,  New  York,  which  was  made  out  chiefly   i{i,i„s,'ieii. 

.  Kiin.!..lell. 

in  srross  sums,  omittinsr  the  details  necessary  to  render  it  satistactorv,        vs. 

°  '  °  -^  .'        Millard. 

and  to  test  its  correctness,  that  the  entire  was  made  out  by  complain- 
ant without  reference  to  original  bills,  but  with  a  view  to  establish  a 
particular  result  and  afforded  no  evidence  of  the  actual  amount,  that 
this  was  all  the  invoice  ever  shewn  to  defendant,  and  he  believes  the 
same  was  not  completed  until  long  after  the  commencement  of 
the  copartnership,  that  the  defendant  retained  same  in  his  |)0s- 
session  a  few  days,  when  he  returned  it  to  complainant,  or  into  his 
possession  at  the  store,  about  the  twentieth  June  last,  and  defendant 
believes  the  same  is  now  in  the  store  or  in  complainant's  possession. 
Defendant  believes  that  bills  were  made  of  the  goods  since  purchased 
at  New  York,  and  elsewhere,  and  that  all  of  said  bills  have  been  kept 
with  the  other  papers  of  the  firm  in  the  store. 

Denies  that  regular  books  of  account  of  all  sales  or  credit  made  at 
said  store  were  kept,  or  that  any  of  the  other  books  mentioned  in  bill 
were  regularly  kept,  but  admits  that  books  purporting  to  be  those  in 
the  bill  mentioned,  and  for  the  time  therein  stated  were  kept  not  in  a 
regular  business  like  manner,  but  very  irregularly,  defendant  believ- 
ing that  not  more  than  one-tenth  of  the  several  accounts  purported 
to  be  kept  thereby  were  in  fact  entered  on  said  books. 

Admits  that  all  the  books  were  kept  in  the  store,  and  were  open  to 
inspection  of  defendant  and  Bond  with  exception  of  said  invoice  bonk, 
which  was,  at  defendant's  request,  delivered  to  him  for  the  purpose  in 
the  bill  alleged,  and  was  returned  by  defendant. 

Denies  that  the  defendant  or  Bond  had  the  control  of  any  of  the 
books,  although  they  were  open  to  their  inspection ;  they  remained 
in  the  exclusive  possession  and  under  the  exclusive  control  of  com- 
plainant, or  his  sons,  who  acted  as  clerks  in  the  store,  and  although 
they  were  nominally  clerks  of  the  company,  yet  they  in  reality  con- 
sulted their  father's  interest  in  all  cases  when  that  was  at  variance 
with  the  interest  of  the  other  partners. 

Admits  the  building  of  the  addition  to  tavern,  and  the   store,  both 

after  Bond's  death,  at  the  time  and  expense  stated  in  the  bill. 

Admitsthe  contract  of  sale  of  a  village  lot  to  Julius  Ranney  as  in 
Vol.  I.  49 


vs. 
Millurd. 


384  CASES  IN  CHANCERY. 

2nd  Circuit,  j^j}]  stated,  says  that  complainant's  participation  in  said  transaction 
Millard,     arose  not  from  his  right  as  a  proprietor  in  the  lot,  but  from  his  interest 
RaJsJeii.    as  a  partner,  and  of  the  firm  having  a  temporary  and  qualified  inter- 

•li ,t«,ti 

est  as  before  stated,  which  rendered  his  assent  necessary. 

Admits  that  said  lot  was  taken  possession  of,  and  part  of  the  pur- 
chase money  paid,  receipted  and  appropriated  as  in  the  bill  stated, 
but  that  defendant  consented  to  such  appropriation  not  from  any  right 
of  the  firm  thereto,  bat  because  same  was  small  in  amount  ;  that  at 
the  time  of  the  contract  defendant  told  Ranney  that  the  company 
could  not  give  a  deed,  but  that  at  some  future  time  defendant  individ- 
ually would  see  that  he  received  a  deed. 

Admits  that  the  addition  to  tavern  and  store  were  built  and  paid 
for,  and  said  lot  sold  and  receipts  for  purchase  money  given  in  all  par- 
ticulars as  stated  in  the  bill,  and  that  the  parties  therein  mentioned 
did  agree  to  erect  said  buildings. 

Admits  the  purchase  from  De.xter  as  in  the  bill  stated,  that  the  deed 
is  in  defendant's  possession;  the  purchase  money  yet  unpaid,  and  no 
part  due  at  time  of  filing  the  bill,  but  defendant  believes  one  payment 
has  since  become  due. 

Admits  that  at  and  previous  to  the  commencement  of  partnership, 
defendant  and  Bond  were  in  negotiation  for  the  purchase  of  village 
property  of  De.xter  as  in  bill  set  forth,  and  the  agreement  between 
complainant,  defendant  and  Bond,  as  in  the  bill  stated,  and  that  the 
purchase  was  not  consummated  during  Bond's  life  time,  and  states  it 
never  was  consummated,  but  the  agreement  then  made  fell  through, 
and  a  new  bargain  was  made  therefor  after  Bond's  death.  That  the 
premises  were  purchased  by  complainant  and  defendant,  not  in  their 
copartnership  character,  but  as  individuals,  admits  that  complainant 
and  defendant  did  complete  the  purchase  as  stated  in  the  bill,  and  that 
the  contract  was  then  in  defendant's  possession.  Admits  that  the  pre- 
mises have  risen  in  value  ;  cannot  say  whether  they  are  worth  at 
least  $7,000,  but  believes  they  are  worth  S5,000. 

Admits  that  complainant  had,  as  he  alleged,  occasion  to  go  to  the 
state  of  New  York  at  the  time,  and  for  the  purposes  mentioned  in  bill, 
and  that  defendant  made  no  objection  thereto,  though  he  conceived 
complainant's  going  to  be  in  violation  of  their  copartnership  articles, 
defendant  regarded  his  departure  as  being  caused  in  reality  by  the  ne 


CASES  IN  CHANCERY.  886 

cessity  of  moving  his  family,  and  that  the  purchase  of  goods  was  only  ^"'^  Circun. 
a  pretext ;  that  if  such  purchase  was  really  necgssary  it  was  in  con-     ^^j,,,  ,r^, 
sequence  of  complainant  having  failed  to  furnish  his  87,000  worth  Ramsdeii. 

_ii  I  1      1  ■  Uaiiiidell. 

of  goods.      1  hat  though  there  was  no  express  agreement,  as  mention-        ,:, 

.  Millard. 

ed  in  the  bill,  in  regard  to  conducting  the  business  during  coniplain- 
ant's  absence  ;  yet  it  was  generally  understood  as  unavoidably  resul- 
ting from  such  absence  that  the  store  should  be  left  in  charge  of  the 
defendant,  and  Bond  and  the  clerks ;  and  that  defendant  and  Bond 
should  take  charge  of  the  other  branches  of  the  business,  and  that 
complainant  should  be  permitted  to  take  the  journey. 

Admits  that  Bond  died  at  the  time  mentioned  in  the  bill.  Defen- 
dant does  not  know  whether  complainant  was  on  his  return  when  he 
heard  thereof,  but  admits  th;it  he  did  return  soon  after. 

Admits  that  after  Bond's  death,  defendant  was  under  the  impres- 
sion from  the  representation  of  others  that  he  was  bound  to  continue 
the  partnership  to  the  end  of  the  four  years,  and  under  that  impres- 
sion he  did  continue  the  business,  with  complainant,  without  any  new 
agreement,  for  their  joint  benefit  and  under  the  same  firm  as  before, 
and  the  business  was  continued  and  carried  on  as  before.  Denies  that 
it  was  under  any  new  agreement  independent  of  the  original  arti- 
cles. 

Admits  that  Bond  left  heirs.  Denies  wholly  any  agreement  or 
conversation  in  reference  to  the  purchase  of  their  rights  for  the  joint 
benefit  of  complainant  and  defendant.  That  defendant  has,  since 
Bond's  death,  purchased  of  the  heirs,  and  become  entitled  to  the  whole 
of  Bond's  interest,  and  that  the  same  was  purchased  for  his  sole  be- 
nefit. 

Admits  defendant's  leaving  Dexter  at  the  time,  and  for  the  purpose 
in  the  bill  mentioned,  and  that  he  procured  from  Bond's  heirs,  deeds 
and  releases,  to  be  executed  to  him  in  his  own  name,  and  that  he 
claims  as  in  the  bill  mentioned.  Denies  that  his  so  doing  was  in  vio- 
lation of  agreement,  or  with  intent  to  deceive  or  defraud  complain- 
ant. 

Admits  that  defendant  derives  his  .said  claims  under,  and  by 
virtue  of  the  several  deeds  in  the  bill  set  forth. 

Admits  that  Bond's  heirs  are  correctly  set  forth  in  bill,  and  that  de- 
fendant is  Administrator  of  said  Bond,  and  that  King  E.  Bond  died 
intestate,  leaving  the  persons  named  in  the  bill  his  heirs. 


386  CASES  IN  CHANCERY. 


2nd    Circuit, 


Admits  that  ever  since  defendant's  appointment  as  Administrator  of 
Millard.     Bond,  he  has  continued  the  business  with  complainant ;  but  defendant 
Ramsdeii.  did  SO  in  his  individual,  and  not  in  his  official  capacity,  as   Adminis- 

&  Ramsdeii. 

vs.        trator. 

Millard. 

Defendant  believes  complainant  has  drawn  more  than  his  share  of 
profits,  and  therefore  denies  that  complainant  has  never  drawn  more 
than  his  share. 

Defendant  cannot  form  any  belief  whether  or  not,  soon  after  his 
return  from  Massachusetts,  complainant  learned  for  the  first  time  that 
defendant  had  taken  deeds  in  his  own  name,  nor  whether  he  relied 
on  the  good  faith  of  defendant,  and  was  not  alarmed  &c.,  nor  wheth- 
er, until  the  conversation  in  the  bill  mentioned,  complainant  learned 
that  defendant  intended  all  of  said  purchases  for  his  own  benefit. 

Defendant  believes  that  complainant  never  entertained  the  least 
idea  that  any  of  said  shares  were  purchased  for  his  benefit. 

Admits  that  since  November,  1836,  the  real  estate  mentioned  in 
the  deed  from  defendant  and  wife  and  Bond  to  complainant  has  risen 
in  value,  independent  of  the  erections  thereon.  Defendant  cannot 
say  how  much  or  whether  they  are  worth  the  sum  mentioned  in  the 
bill. 

Denies  that  defendant  ever  told  complainant  that,  on  the  purchase 
of  the  rights  of  Bond's  heirs,  he  assumed  as  part  of  the  considera- 
tion of  the  purchases  the  payment  of  the  debts  due  from  the  firm  of 
Millard  &  Bond,  and  that  the  consideration  expressed  in  the  deeds, 
was  the  amount  actually  paid  over  and  above  the  debts,  that  such  was 
not  the  fact,  but  defendant  admits  that  he  may  have  told  complainant 
that  as  part  of  the  consideration  he  was  to  assume  the  debts,  but  the 
amount  of  consideration  e.xpressed  in  the  deeds  was  inserted  in  a 
round  sum,  without  regaid  to  the  sum  actually  paid,  which  in  some 
instances  exceeded  the  amount  stated. 

Admits  that  the  whole  amount  of  consideration  expressed  in  said 
deeds  is  two  hundred  and  fifty  dollars.  But  for  the  reasons  before 
stated,  defendant  wholly  denies  and  repudiates  the  pretended  claims 
of  complainant,  to  any  participation  in  the  property  acquired  by  said 
purchasers,  and  denies  that  complainant,  by  virtue  of  any  agreement 
with  defendant,  and  of  any  right  as  surviving  partner,  and  by  pay- 
ing to  defendant  the  half  of  the  sums  in  the  bill  mentioned,  or  other- 


CASES  IN  CHANCERY.  387 

wise  would  be  entitled  to  half  of  said  property,  or  any  part  thereof.  ^"^  circuiu 

Denies  that  any  tender  was  ever  made  as  stated  in  the  bill,  but  ad-     ^inurj 
mits  that,  at  or  about  the  time  stated  in  the  bill,  complainant  did  make    R.unsiieii. 
the  demand  stated  in  the  bill  relative  to  said  property,  and  that   de-       'c'»?'^ 
fendant  refused. 

Admits  the  illness  of  complainant,  as  stated  in  the  bill,  and  that 
the  store  was  left  in  care  of  his  two  sons,  and  there  was  in  the  store 
a  large  stock  of  goods.  Does  not  know  the  amount,  or  of  what 
they  consisted.  Also,  books  of  account,  notes,  &c.,  &c.,  together 
with  a  certain  sum  of  money.  Defendant  cannot  set  forth  the 
particulars,  or  amount ;  all  such  matters  remained  under  the  control 
and  management  of  complainant,  as  well  during  his  temporary  ill- 
ness as  before. 

Admits  that  defendant  did  take  the  sum  of  one  thousand  dollars  as 
stated  in  the  bill,  and  for  the  purpose  therein  mentioned,  and  which 
was  not  a  mere  pretence,  that  he  did  actually  pay  the  bank  note  there- 
with. 

Admits  that  defendant  did  enter  the  store  in  the   absence  of  com- 
plainant, and  the  clerks  as  stated  in  the  bill,  and  put  into  an  iron  safe, 
therein  the  books,  notes,  &c.,  and  removed   the   key   of  the  safe  in 
which  the  money  was  kept,  but  all  this  was  done  in  pursuance  of  the 
consequences  of  the  writ  of  injunction,  &;c,  and  in  accordance  with  the 
prayer  of  a  bill  which  defendant  was  coerced  to  file  by  the  conduct  of 
said  complainant,  &c.,  and  because  defendant  apprehended  if  he  had 
notice  of  the  issuing  of  the  writ,  he  would  seize  upon  the  portable  and 
valuable  property  of  the  firm,   &c.,  defendant,  in  order    to   protect 
them  locked  them  up,  and  after  service  of  writ,  removed  the  same  to 
his  house,  the  complainant   having  obtained   a  key  of  the  safe,  and 
dismissed  complainant's  sons,  as  stated  in  the  bill,  because  he  had  not 
confidence  in  them,  and   placed  in"said  store  a  competent   and  trusty 
clerk,  and  assumed  the  entire  control  and  management  of  the  busi- 
ness.    Defendant  submits  that  he  was  justified  &c.,  and  exercised  on- 
ly his  legitimate  povver. 

Admits  that  at  that  time  defendant  received  from  the   safe  in  said 
store,  about  sixteen  hundred  dollars. 

Admits  that  during  complainant's  illness  defendant  took  and   ap- 


^88  CASES  IN  CHANCERY. 

2nd  Circuit,  propriated  to  his  own  use  various  sums  of  money  as  he  was  justified 

Miiianf.     i"   doing  by  virtue  of  his  rights  as  a  partner  and   by  virtue  of  arti- 

Rams.'ieii.   cles  relative  to  the  purchase  of  the  Brower  lot ;  all  of  which    were 

vT  ^  '  entered  upon  the  books,  avers  that  the  whole  did  not  exceed  the  pro- 

Millard.  ^ 

portion  of  defendant. 

Admits  that  on  the  twenty-eighth  of  June  defendant  being  in  pos- 
session of  the  store,  complainant  did  call  at  the  store  and  requested, 
as  stated  in  the  bill,  and  that  defendant  did  refuse  said  requests,  which 
he  was  induced  to  do  because  he  wished  to  make  an  inventory  there- 
of, previous  to  the  access  of  complainant  thereto,  whom  he  suspec- 
ted of  a  design  to  alter  the  same  and  make  entries  thereon,  which 
entries  complainant  did  afterwards  make  as  hereinafter  stated,  and 
defendant  did  not  think  complainant  was  entitled  to  have  access  to 
the  books  until  they  were  in  the  hands  of  a  Receiver,  and  defendant 
removed  them  to  his  own  house  until  a  Receiver  was  appointed,  and 
then  delivered  them  to  him. 

Denies  that  there  was  no  person  in  the  employment  of  the  firm  to 
take  care  of  the  interests  of  complainant,  that  defendant  employed 
a  trusty  and  competent  clerk  to  act  for  the  entire  concern,  and  gave 
his  own  time  and  attention  to  the  business,  but  defendant  did,  as  stated 
in  the  bill  refuse  to  permit  any  person  appointed  by  complainant  to 
attend,  &c. 

Admits  the  receipt  of  money  and  the  state  of  funds  as  stated  in 
the  bill. 

Admits  that  defendant,  though  not  an  illiterate  man,  is  unacquain- 
ted with  the  mercantile  business. 

Denies  that  complainant  has  any  well  grounded  apprehensions  of 
being  defrauded  by  defendant. 

Admits  that  no  account  was  ever  settled  between  them.  Defen- 
dant avers  that  complainant  has,  during  the  partnership  applied  to  his 
own  use  sums  of  money,  and  exceeding  his  proportion,  to  an  amount 
unknown  to  defendant,  and  that  he  permitted  his  sons,  being  minors, 
and  irresponsible  to  take  out  of  store  goods,  and  charged  them  to  their 
account,  and  also  that  complainant  furnished  articles  for  the  use  of 
the  concern  and  charged  more  than  they  were  worth. 

Insists  and  avers  that  the  partnership  was  dissolved  by  Bond's  death, 


CASES  IN  CHANCERY.  •   389 

and  all  of  complainant's  right  to  a  share  of  the  profits  of  mills  &.C.,  -"**  Crrcuit. 
became  extinct.  .Aiiiiiini. 

Admits  that  complainant,  although  not  entitled  to  any  participation    ituin'.ieii. 

•  •!!  r     \  Rumsdcll. 

m  the  fee  of  said  real  estate,  is  entitled  to  an  account   of  the  proper-        v 

'       '  Millard. 

tion  of  his  funds,  if  any  drawn  from  said  concern,  for  improvements 
of  said  estate  ;  but  defendant  says  that  said  sums  should  have  been 
charged  to  him  and  Bond,  and  if  not  already  charged,  should  now  be 
so  charged,  &c. 

Admits  the  institution  of  proceedings  in  this  court,  as  in  the  bill, 
and  that  a  Receiver  has  been  appointed,  to  whom  defendant  gave  up 
the  premises,  books,  money,  &c.,  and  the  Receiver  now  conducts  en- 
tire business. 

That  complainant  having  expressed  anxiety  to  help  the  Receiver 
and  been  permitted  to  have  access  to  the  books,  took  advantage  there- 
of to  make  some  entries  thereon,  materially  affecting  the  nature  and 
statement  of  some  of  the  accounts,  and  did  the  same  in  a  clandestine 
illegal  manner.  Defendant  does  not  know  the  nature  or  amount 
thereof. 

That  the  bill  is  irregular,  informal  without  equity,  and  deficient  as 
to  parties. 

Defendant  prays  to  be  allowed  the  benefit  of  these  and  all  other  ob- 
jections on  the  hearing  of  the  cause,  and  on  all  other  occasions,  as 
fully  as  if  the  same  had  been  made  the  subject  of  special  demurrer, 
or  plea.  Prays  the  dismissal  of  complainants  bill  and  the  relief  pray- 
ed by  the  defendant's  original  bill. 

General  replication  filed. 

Miles  &  Millard,  for  complainant. 
KiNGSLEY,  Fraser  &  RoMEYN,  for  defendant. 

The  Chancellor. — It  is  not  necessary  in  this  stage  of  these  caus- 
es to  enter  at  length  into  a  detailed  statement  of  the  pleadings,  and 
the  very  voluminous  proofs,    and  exhibits  which  the  cases  present. 

The  first  question  presented,  which  it  is  necessary  to  decide  before 
the  accounts  are  stated,  is,  did  Millard  comply  with  the  conditions  of 
the  articles  of  copartnership  by  furnishing  goods  to  the  amount  of 
$7000,  and  thus  entitle  himself  to  the  one  third  of  the  real  estate  and 
to  an  equal  share  of  one  third  in  the  effects  and  profits  of  the  copart- 


390  '  CASES  IN  CHANCERY. 

2nd  Circuit,  nership.     An  inventory  is  exhibited,  by  which  it  appears  that  the  cost 

^^yy^^  of  the  ffoods  furnished  by  him  was  -$5,389  54  exclusive  of  the  cost  of 

Rfimtrteii.   transportation,  insurance,  &c.,  and  that  a  general  charge   was  added 

* '^^cT''^"' of  thirty-three   and  one-third    per   centum  for   freight,  purchase   of 

goods,  insurance,  &c.,  making  $1,796  51,  which  two  sums,  make  in 

all  $7,186  05. 

It  appears  by  the  proofs  in  the  cause  that  from  eight  to  ten  per  ct. 
should  cover  these  charges. 

It  becomes  necessary  to  determine  the  question  whether  the  good^ 
thus  furnished  were  accepted  and  received  by  Matthews  and  Bond  as 
a  fulfilment  of  this  part  of  the  agreement  on  the  part  of  Millard.  It 
may  be  proper  to  say  from  my  view  of  the  terms  of  the  contract  that 
if  Matthews  and  Bond  had  dissented  at  the  time  the  goods  were  fur- 
nished, and  refused  to  proceed  further  until  the  question  of  the  amount 
to  be  charged  for  purchasing  the  goods,  freight,  &c.,  had  been  settled 
and  the  deficit  supplied,  they  would  have  been  entitled  to  have 
the  amount  of  goods  stipulated  for,  at  cost  and  reasonable  charges 
and  expenses  without  any  addition  by  way  of  profit. 

But  from  the  testimony  of  King  and  C.  D.  Millard,  confirmed  to 
some  extent  by  that  of  John  Williams  there  are  strong  grounds  of 
probability  ihat  the  exhibit  containing  an  inventory  of  goods,  and  in 
which  this  charge  of  $1796  51  occurs,  was  the  one  used  at  the  time 
the  goods  were  received  at  Dexter. 

The  testimony  of  Cyrus  Loomis  of  the  admission  of  Matthews, 
that  Millard  had  fulfilled  on  his  part,  confirmed  as  it  is  by  the  prom- 
inent fact  that  the  deed  of  the  one  third,  part  of  the  property  was  ex- 
ecuted by  both  Matthews  and  Bond  some  time  after  the  goods  were 
received,  without  an)'  further  stipulation  or  reservation,  altogether  fur- 
nish a  very  strong  presumption  that  the  parties  themselves  regarded 
this  part  of  the  contract  as  fulfilled  and  settled.  Whatever  may  have 
been  the  fact,  in  a  doubtful  question  of  this  kind,  it  is  much  the  most 
safe  to  abide  by  the  unequivocal  acts  of  the  parties  themselves,  than 
at  this  late  period  to  attempt  to  open  this  matter. 

That  the  parties  executed  and  delivered  the  deed,  admits  of  no 
doubt. 


r». 

Millard. 


CASES  IN  CHANCERY.  391 

As  to  Ihe  alleged  agreement  for  the  purchase  of  the  interests  of  the  '^"'^  circuit. 
heirs  of  Bond.  ^"^^^^IT^ 

It  is  urged  that  this  agreement  is  made  out  by  the  an.swer  of  Mil-  Rnmld'cii.  a. 
lard,  and  that  it  is  taken  out  of  the  statute  of  frauds  by  part  perfor.  "•'"""'"'• 
mance.  Millard,  the  defendant  in  the  first  suit,  and  complainant  in 
the  other,  insists  irj  his  answer  in  the  one  case,  ^nd  in  his  bill  in  the 
other,  that  it  was  agreed  betw'een  himself  and  Matthews  after  the 
death  of  Bond,  that  the  interests  of  the  heirs  of  Bond  (should  be  pur- 
chased by  Matthews  for  the  benefit  of  both.  This  is  denied  in  the 
most  positive  terms  by  the  answer  of  Matthews,  in  the  second  suit. 
It  was  insisted  at  the  argument  that  Millard's  answer  being  respon- 
sive to  the  bill  and  not  disproved,  must  be  taken  as  true.  ]\Iatthews 
alleges  in  his  bill  his  right  lo  certain  shares  purchased  of  the  heirs  of 
Bond.  This  Millard  denies,  and  by  way  of  avoidance,  sets  up  this 
independent  contract  by  way  of  showing  himself  entitled  to  the  one 
half  of  these  shares.  This,  I  am  inclined  to  regard  as  not  coming 
within  the  rule  of  being  directly  responsive  to  the  allegations  of  the 
bill.  It  sets  out  a  ne\y  contract,  and  should  be  proved.  The  testi- 
mony of  the  witnesses  is  not  positive  and  conclusive.  They  do  not 
testify  as  to  the  terms  used  by  the  parties  in  making  the  contract. 

O.  D.  Millard  says  in  general  terms  that  it  was  agreed  that  the  in- 
terests should  be  purchased  for  the  benefit  of  both,  as  he  understood 
it  :  giving  the  understanding  of  the  witness  and  not  the  words  used 
by  the  parties. 

The  testimony  of  B.  King,  as  to  the  purcha^-e,  is  still  less  explicit. 

It  seems  strange  that  a  transaction  of  this  importance  should  have 
taken  place  without  a  written  contract,  or  at  least  a  verbal  one  more 
plear  and  explicit.  It  has  rather  t.'ie  appearance  of  a  conversation 
in  relation  to  a  contract,  than  a  clear  definite  and  complete  agree- 
ment. 

No  entry  on  the  subject.is  made  on  the  books.  The  money  is  paid 
entirely  by  Matthews  ;  no  charge  is  made  to  Millard  or  to  the  firm  ; 
and  the  title  is  taken  to  Matthews  individually. 

The  claim  as  alleged  is  for  an  interest  in  the  entire  shares  purchas- 
ed of  the  heirs  of  Bond.     The  testimony  relates  only  to  the   shares 
of  the  heirs  residing  in  Massachusetts,  while  several  others  were  res- 
ident in  the  immediate  vicinitv  of  Dexter.     It  will  be  perceived  that 

Vol.  I.  50 


392  CASES  IN  CFIANCERY. 

2nd  Circuit-  ^]^q   contract  is   not   proved    in   that  clear,  full  and  precise  manner, 
Millard,     wliich  has  Uniformly  been  required  as  the  first  step   toward  the  estab- 

Kamltieii.&  lishment  of  a  parol  contract  for  the  conveyance  of  lands. 
"^  vs.    '        If  the  contract  be  vague  and  uncertain,  or  the  evidence  to  establish 

Millard.  ^  -r^      .  .,,  „  .      ,  -hi 

it  insufficient,  a  Court  of  Equity  will  not  eniorce  it,  but  will   leave 
the  party  to  his  legal  remedy.    Colson  vs.  Thompson^  Wheat,  R.  SSG 
(S.  C.  4  Pet  Cond.R.lA^.)  It  was  however  insisted  that  there  h-jd  been 
such  unequivocal  acts  of  part  performance  as  would   confirm  the  ex- 
istence of  the  contract  and  take  it  out  of  the  operation  of  the  statute.  ^ 
These  acts   consist  principally  in  certain  improvements  upon  the 
property  after  the  death  of  Bond,' by  the  surviving  partners  and  with- 
out keeping  an  account  of  their  expenditures.     The  rule  is  that  the 
act  of  part  performance  must  unequivocally   result  from  the    agree, 
ment  alleged.     See  Burtch  vs.  Ilogge  ante  31  andn  1,  2;  Bomier  vs- 
Caldwell  ante  67;  McMuriric  vs.  Bennett  12-i.    It  may  have  been  so  in 
this  case  ;  but  this  is  not  one  of  those  cases  where  the  acts  mast  ne- 
cessarily liave  resulted  from  this  agreement,  and  are  inconsistent  with  . 
any  other. 

It  will  be  perceived  that  from  the  view  1  h;ive  taken  of  this  portion 
of  the  cause,  this  is  not  a  case  of  a  parol  contract  clearly  proved 
and  pa,rtly  performed,  which  calls  upon  this  court  to  decree  a  specific 
performance.  It  is, not  clearly  and  distinctly  proved.  It  is  positive- 
ly denied  by  iSIatthews.  The  money  was  all  paid  by  him  and  no 
charge  made,  cither  to  Millard  or  to  the  firm.  The  title  deeds  were 
all  taken  in  his  name,  and  it  at  least  presents  such  a  case  of  doubt  as 
admonishes  this  court  of  the  danger  of  interfering  to  decree  the  'per- 
formance of  a  contract  whicK  may  never  have  had  an  existence. 

Mattliews,  although  he  denies  any  new  agreement,  says  he  believ- 
ed at  the  time  he  was  bound  to  continue  the  partnership.  It  is  not 
going  too  far  I  think,  to  regard  this  to  have  been  the  understanding 
of  the  parties  as  the  interests  were  subsef|uenl]y  vested  in  Matthews, 
to  accord  to  them  an  equal  interest  in  the  profits  after  the  death  of 
Bond. 

Hence  it  will  result  that  in  taking  the  accounts  Millard  must  b-e  re- 
garded as  lAving  fulfilled  on  his  part  the  original  agreement,  and  to 
be  entitled  to  one  third  of  the  real  estate,  and  to  one  third  of  the  pro- 
fits of  the  copartnership  to  the  death  of  Bond,  and  that  the  accounts 


CASES  IN  CIIANCEUY.  393 

be  stated  to  tliat  period.     That  thcrcaftei"  the  survivors  Millard  and  -'"'  circuit. 
Matthews  share  and  share  alike  in  the  profits.     That  the  legal  repre-    .Miiiard: 
sentativesof  Bond  be  credited  with  interest  upon  their  share  of  the  unmsdeii. 
capital,  and  a  reasonable  rent  lor  their  proportion  of  the  real   estate        bs. 

•     11'  I  •  11-  Millard. 

(rom  that  period  to  be  ascertained  by  tiie  master.  And  as  it  appears 
that  the  repairs  and  improvements  made  to  the  real  estate,  were  nec- 
essary and  usefisl.  and  were  made  with  the  concurrence  of  Matthews 
jn  whose  estate  these  shares  are  now  vested  that  the  representatives 
of  Bond  are  to  be  charged  in  the  account  with  one  third  of  their  cost, 
and  that  further  difections  be  reserved  until  the  coming  in  of  the  re- 
port. 

July  11,  1840  a  rehearing  was  granted  upon  petition  filed  for  that 
purpose,  and  an  oi-der  granted  staying  all  proceedings  until  the  re- 
hearing should  be  had.  The  following  is  the  opinion  o(  the  Chan- 
cellor on  the  rehearing  : 

The  Chancellor. — Most  of  the  questions  raised  upon  the  re-hear- 
ing of  this  cause  Were  considered  and  disposed  of  when  the  case  was 
before  the  court  upon  the  first  hearing.  It  is  not  necessary  therefore 
to  again  go  through  the  details  of  this  complicated  case.  Upon  are- 
view,  I  must  confess  I  have' had  more  hesitation  and  doubt  upon  the 
question  as  to  whether  .Matthews  ought  not  to  be  held  and  considered 
as  having  purchased  the  interest  of  the  deceased  partner  for  the  be- 
nefit of  the  firm,  arid  an  equal  division  made,  both  of  the  property 
and  profits,  after  the  re-payment  of  the  money  paid  by  hiin  for  the 
purchase  of  this  interest. 

But  as  there  is  no  reasonable  doubt  from  the  entire  case  that  the 
purchase  money  was  paid  by  Matthews,  no  charge  or  memorandum 
made  on  that  account  in  the  books,  and  no  written  contract  or  memo- 
randum between  the  parties;  it  is  perhaps,  if  there  be  an  error,  er- 
ring on  the  side  of  safety  to  adhere  to  the  views  there  expressed  up- 
on this  point,  although  it  is  with  some  doubt  and  hesitation.  But  the 
point  made  upon  the  rehearing,  and  to  which  the  petitioners  must  be 
confined,  is,  that  the  representatives  of  the  heirs  of  Bond  are  entitled 
to  their  election,  to  take  either  interest  or  profits  upon  that  share.  It 
was  held  upon  the  former  occasion  as  v/ell  from  the  pleadings  and 
proofs  as  from  the  whole  course  of  the  business  of  this  firm,  that  it 
•was  understood  and  agreed,  on  the  part  of  Matthews  that  this  part- 


3d4  CASES  IN  CHANCERY. 

Snd  cuciiit.  nership  should  be  conlinued,  and  that  each  party  were  entitled  to  share 

Millard.     ^^^^^  ^^^^''  ^''®  ^^^^^  °^  Bond. 

RamVcieii.        The  interest  of  Bond  being  vested  in  Matthews,  to  give  him  or  his 
&  Ramsdeii.  j.gpj.egejjtative3  this  option  now  would  be  contrary   to  what,  from  the 
entire  case,  mirst  be  inferrted,  was  the  contract  and  understanding  of 
these  partners,  inequitable  and  unjust. 

Of  the  general  rule  that  the  representatives  of  a  deceased  partner 
have  this  election,  when  the  partnership  is  continued  without  their  as= 
sent,  there  is  no  doubt. 

But  here  this  interest  is  vested  in  one  of  the  partners  who  has  coil- 
sented  to  the  continuance  of  this  copartnership  ;  the  reason  of  the 
rule  ceases,  and  he  cannot  bte  permitted  to  share  in  a  manner  differ- 
ent from,  and  in  violation  of  the  manifest  understanding  of  the  par- 
ties. 

Although  not  embraced  in  the  petition  for  a  rehearing,  it  is  urged 
that  rent,  instead  of  interest,  should  be  charged  upon  the  share  intht; 
mills,  and  real  estate  originally  belonging  to  Bond.  Such  was  my 
first  impression. 

The  whole  matter  of  the  negotiation  after  the  death  of  Bond,  is 
left  very  obscure  ;  no  terms  or  conditions  satistactorily  established 
in  the  pleadings  or  proofs.  The  master,  in  fixing  upon  a  reasonable 
rent,  must,  in  fact  resort  to  the  profits  made  by  the  mills  which  form- 
ed the  principal  business  of  this  copartnership,  and  it  will,  in  fact,  by 
changing  the  decree  in  this  respect  be  but  allowing  profits  by  anoth- 
er name,  which  the  case  made,  will  neither  call  for  nor  justify. 

There  is  much  that  is  obscure  in  this  case,  but  upon  the  whole  I 
think  that  the  equity  of  the  case  does  not  call  for  or  justify  the  relief 
sought  for  by  the  petition  for  a  rehearing. 

Motion  denied,  and  the  order  for  a  stay  of  proceedings  vacated. 


CASKS  IN  CHANCERY.  59! 


John  E.  ScuwAhz,    et.  al.  vs.  Tunis  S.  VVki^dell.  FiriiCircuU- 

A  plea  of  a  6tale;l  accoun!  must  aver  llie  accounls  E(!liled  all  dealings  bclwdcn  the  panics;  that    s'chuari. 
xhc-atcOutita  were  just  ami /air,  ami  due,  andtli:?Sts  avcriiieiile  must  be  supported  by  un  an-     ,,.  *':  .. 
swer  to  the  same  effect. 

A  plea  of  a  release  unsupported  hy  an  answer  is  Insufficient. 

The  biliof  complaint  alleges  that  on  the  6th  of  McLtch,  183G,  Tu- 
nis  S.  Wendell,  who  was  then  acting  as  trustee  of  the    complainant, 
Catharine  Schwarz,  inquired  of  said  Catharine  whether  it  was   not 
probable,  that  the  interests  which   the  co-heirs  of  Abraham  Sheridan 
held  in  common  with  said  Catharine  in  17  inlots,  and  4  out  lots  in  the 
Borough   of  Erie,  Pennsylvania,  could  be  purchased  ;  adding  at  the 
same  time  that  he  had  received  Ati  offer  for  the  whole  property.     Af- 
ter some  conversation  between  the  said  Wendell  and  the   complain- 
ant, John  E.  Schwarz,  husband   of  said   Catharine,  it  was  proposed 
by  Wendell  and  assented  to  by  said  John   E.  Schwarz  v^-ithout  con- 
sulting Catharine   Schwarz,  the    cestui  que  trust,  that   he,  Wendell, 
should  raise  sufficient  money  to  buy  the  interest  in  said  lots,  not  held 
und  owned  by  said  Catharine,  and  for  that  purpose,  he  said  Wendell, 
should  visit  the  city  of  Philadelphia  where  the  persons  owning  the 
property  resided    and  endeavor  to   purchase  the  same  ;  and  for  ^his 
trouble  should  receive  one  litilf  of  the   profits  arising  from  the  pur- 
chase of  said  lots.     That  on  the  day  following  this  interview,  the  said 
John  E.  and  Catharine  came  to  the  city  of  Detroit  at  the  solicitation  of 
Wendell,  and  the  said  Wendell  then  required  said  Catharine  to  exe- 
cute a  note  of  that  date  for  !?^4000,  J)ayable  in  90  days  to  him  or  his 
order  at  the  Bank  of  Michigan,  to  enable  hinn  to  raise  the  necessary 
means  to  purchase  the  property.     Against  this  propcsition  John  E.  S'z. 
protested  and  said  it  was  a  variation  from  his  (Wendell's)  proposition 
of  the  day  before,  to  furnish  the  money,  and  that  to  require  the   said 
Catharine  to  furnish  the  money  and  give  him,   the  said3_Wendell  a 
share  in  the  expected  profits,  would  be  unjust,  to  which  Wendell    re- 
plied, that  he  had  made  his  calculations  and  preparations  to  commence 
his  journey,  and  if  they  declined  sending  him,  $2000  would    not  in- 
demnify him  against  the  damage  he  would  thereby  suffer.     The  said 


396  CASlES  IN  CHANCERY. 

First  circuit  Cathai'ine  then  without  understanding  the  proposition  or  terms  upon 
which  Wendell  proposed  to  buy  said  property,  and  being  urged  by 
her  husband,  John  E.  Schwarz,  and  the  said  Wendell,  and  acting  on 
iheir  advice,  executed  the  said  note  and  deliverfed  it  to  Wendell. 

Immediately  after  the  said  Wendell  drew  up   the  memorandum  of 
Agreement,  set  forth  in  the  bill  of  complaint  between  himself  and  the 
said  John  E.  Schwarz,  on  thepar^of  said  Catharine,  reciting  that,  as 
he  had  procured  on  that  day  $4000  from  the  Bank  of  Michigan    for 
!he  purpose  of  purchasing  tlie   interests  of  Richard  P.  Harding  and 
John  G.  Thomas  in  the  17  inlots  and   4  out  lots,  in  the  Borough   of 
Erie,  Pennsylvania  ;  that  he,  said  Wendell  should  immediately  pro- 
ceed to  Philadelphia  for  the  purpose  of  purchasing  the  said  property  ; 
and  that  he  should  have  one  lialf  of  all   the  profits    arising  from  the 
purchase  of  said  property,  or  if  he  succeeded  in  only, purchasing  part 
of  the  property,  he  was  to  have  one  half  the  profits  on  the   portion 
acquired,  and  his  expenses.     And  it  was  further  provided   in   said  a- 
greement  if  he  did  not  succeed  in  making  the  purchase,  said    Catha- 
rine should  pay  his  travelling  expenses  merely,  and  it  wasalso  agreed 
that  if  he  purchased  any  other  property  it  should  be  for  the  benefit  of 
the  said  Catharine,     The  bill  alleges  this  memorandum  wna  signed  by 
the  said  Wendell  and  Jbhn  E.  Schwarz   without  the  knowledge,  di- 
rection or  consent  of  the  said  Catharine.     On  the  8th   l\Iarch    Wen- 
dell started,  having  previously  obtained,  the  amount  of  the  note  made 
by  said  Catharine  of  the  Bank  of  JMidiigan.     On  the  19th  JMarch  he 
purchased  of  John  G.  Thomas  and  wife  their  interest  in  said  lots,  be- 
ing one  undivided  third  part,  for  $1200,  and  took  the  title  in  his  name 
as  trustee  of  the  said  Catharine.     Wendell  then  made  other  purcha- 
ses of  real  estate  for  said  Catharine  to  the, amount  of  about  81,600, 
and  paid  iherefor  out  of  the  money  derived  from  §aid  note  of  §4000. 
Complainants  cannot  state  the  amount  precisely  of  all  the  purchases 
as  no  account  of  said  $4000  has  been  rendered,  and  all  the  deeds  not 
being  in  the  possession  of  the  complainants. 

Bill  further  states  that  no  part  of  said  $4000  note  has  ever  been 
repaid  to  the  complainants,  but  alleges  that  a  large  sum  remains  un- 
expended for  the  use  of  the  said  Catharine,  and  unaccounted  for  by 
said  Wendell.  The  $4000  note  became  due  on  the  10th  of  June, 
183G,  and  on  request  of  Wendell,  that  some  other  person  should  be 


CASES  IN  CHANCERY.  307 

procured  as  an  endorser  on  the  note  which  was  to  be  made  to  renew  nrsi ^^ircim 
the  one  falling  due  ;  the  said  Catharine  procured  Eurotas  P.  Hastings  sciiw.ir/.. 
to  endorse  the  same.     This  renewed  note  when  it  became  due  at  the   wcmtcii. 
bank  on  tiio  31st  of  August,  183G,  was  paid  by  said  Wendell   out  of 
money  belonging  to  said  Catharine. 

Bill  further  states  that  Wendell  on  or  about  Sept.  3d,  1836,  men- 
tioned tliMt  he  had  a  chance  to  sell  his  share  of  the  Erie  property  to 
one  Abijah  Fross,  who  complainants  believe  was  a  man  of  little  or  no 
credit  or  responsibility,  for  the  sum  of  $jOOu,  but  offered  to  sell  it 
to  said  Catharine,  and  lake  a  certain  mortgage  which  she  held  against 
one  Joshua  Boyer,  and  to  receive  the  balance  in  a  note  of  hand  on 
long  time,  to  which  said  complainant,  John  I'^  said  he  would  consent 
if  Catharine  was  willing  to  agree  thereto.  In  a  t''ew  days  after  an 
assignment  of  the  mortgage  and  a  note  for  the  balance  of  the  -S'SOOO 
was  prepared,  which  the  said  Catharine  declined  signing,  saying  that 
the  said  Wendell  must  wait  for  his  share  of  the  profits  until  the  pro- 
perty was  sold. 

The  bill  of  complaint  further  states  that  afterwards  and  on  or  about 
the  commencement  of  1837,  John  E.  and  Catharine  Schwarz,  on  the 
one  part  and  Wendell   on  the    other,  became  dissatisfied   with    each 
other,  and  it  was  agreed  between  them  that  the  said  Wendell    should 
transfer  all  the  trust  property  in    his  possession  to  the   complainant, 
Eurotas, P.  Hastings  appointed  by  said  Catharine  as  her  trustee  to  hold 
the  same,  and  papers,  deeds  and  conveyances  were  prepared,  and  on 
the  28th  January,  1337,  said  John  E.  and  Catharine  and  Eurotas  P. 
met  said  Wendell  to  have  him  execute  the  said  deeds,  that  on  the  same 
day  after  the  deeds  were  laid  on  the  tal)le,  but  before  their  execution 
said  Wendell  presented  and  required  said  Catharine  to  sign  as  an  im- 
plied condition  of  his  transferring  said  trust  property,  a  note  bearing 
date  that  day  for  $3,980  24,  payable  in  three  years  from  date  to  said 
Wendell  or  bearer.     That  said    demand  was  a   surprize  upon    com- 
plainants, the  said  Wendell  also  at  the  same  time  produced  a  memo- 
randum not  intelligible  to  them,  wherein  he  charged   said    Catharine 
§5000  for  his  share  of  the  Erie  property,  and  after  deducting  cer- 
tain items  pi'esented  the  said  balance  of  83,980  24. 

The  said  Catharine  insisted  that  the  demand  of  said   Wendell   was 
unjust,  but  he  insisting  upon  it,  she  for  the  purpose  of  avoiding  any 


398  CASES  IN  CHANCERY. 

Firstcircu.i.  difficulty,  aT\d  lo  get  the  property  out  of  his  hands,  after  hastily  con- 
sulting with  John  E.  Schwarz,  signea  said  note.  Wendell,  before 
signing  the  deeds  requested  said  Hastings  as  trustee  of  said  Catha- 
rine to  sign  said  rote,  and  he  without  any  knowledge  of  the  facts  and 
circumstances  and  at  the  request  of  said  Catharine,  signed  it.  The 
note  was  delivered  to  defendant  and  the  conveyances  executed  and 
delivered. 

To  the  bill  the  defendant  filed  a  plea. 

The  plea  of  the  defendant  states  that  at  the  time   when  the  defen- 
dant assigned  the  trust  estate  to  Hastings  as  is  stated  in  the    bill,  he 
rendered  to  the  said  Catharine  and   Hastings,  an  account  of  all  mo- 
ney and  properly  received  by   him  as  trustee,  and  an  account    was 
then  taken  between  the  parties  of  all  money   received  and  paid  out 
by  defendant  as  such  trustee,  and  all  his  transactions  as  such  trustee, 
and  on  such  accounting  there  was  found   due    from  said  Catharine  to 
said  defendant  84,160  63,  and  that  balance  was  stated,  agreed  upon 
and  acquiesced  in,  by  the  said  Catharine,  Eurotas  P.  and  John  E.  and 
thereupon  defendant  took  a  note  from  and  executed  by  the  said  John 
E.  for  $180  59  and  he  then  took  from  said  Catharine  and  EurotasP. 
as  trustee,  another  note  executed  by  them  for  $3,980  24,  payable  to 
defendant  or  bearer,  three  years  after  date,  with  interest   at  six    per 
cent,  per  annum,  and  dated  the  same  day,  January  28, 1837,  thes^id 
two  notes  amounting  together  to  the  said  sum  of  $'4,160  83,  the  for- 
mer of  which  notes  is  in  possession  of  defendant,  but  the   latter   has 
been  sold  and  transferred  by  him, 

The  plea  avers  the  settlement   of  all  things  relative  to  the    trust, 
and  the  execution  of  an  indenture  by  the  said  John  E.  and  Catharine 
and  the  said  Eurotas  P.  as  her  trustee,  and  the  said  defendant   of  the 
same  date  with  said   notes,  wherein  after  reciting  his  having  former_ 
ly  acted  as  trustee,  his  having  executed  deeds,  entered  into  covenants, 
and  done  other  acts  at   the  request  of  said  Catharine  and  John  E. 
which  might  create  a  personal  liability  on  his  part,  and  his  having  as- 
signed the  trust,  the  said  John  E.  for  himself,  his  heirs  &c.,  in  con- 
sideration of  the  premises  and  of  the  sum  of  one  dollar   paid,  cove- 
nanted and  agreed  to  save  harmless  and  indemnified,  and  keep  defen- 
ded the  said  defendant  of,  and  from  all  acts,  deeds  and  covenants,  by 
him  as  such  trustee  done  or  executed,  and  from  all  liabilities  existing 


CASES  IN  CHANCERY. 

or  vvhicli  might  arise  by  reason  of  liis  having  acted  as  sucli   trustee, 

and  to  reimburse  him  for  all  losses  he  might  be  compelled  to  sustain    sciiwarz. 

by  reason  thereof.     And  the  said  Eurotas  P.  for  the  like  consideration   Wcndcii. 

covenanted  and  agreed  in  like  manner,  as  the  said  John  E.  so  far  as  the 

funds  and  property  belonging  to  the  said  Catharine,  and  in  his  hands, 

as  trustee,  would  enable  him,  and  to  tliat  extent  and  no  more. 

,JoY&;  Porter,  for  complainants. 

The  plea  is  insuflicient  for  two  reasons. 

J:<'trst .  It  is  not  avered  in  the  plea  that  the  account  which  was 
stated  was  a  true  and  just  account,  to  llic  best  of  the  defendants  know- 
ledge and  belief.  This  is  necest^ary,  although  the  bill  docs  not  im- 
peach the  account  on  the  ground  of  fraud  or  error.  3  J.  C.  R.  389, 
339,390,3!)!;  BcamesPL^m;  S  AlL  R.  10;  Coup.  PI.  279; 
Mi/f.  PL  2G0;  4  Paige   R.  195. 

Second.  The  plea  does  not  [)ut  in  issue  thp  matters  charged  in 
the  bill,  ll  does  not  deny  the  con.structive  fraud  alleged,  nor  the 
imposition.  The  plea  should  deny  the  fraud  charged,  or  the  facts 
which  constitute  the  fraud.  4  J.  C  R.  Q9U  ;  3  Paige,  i?.  277,  278, 
♦.^,  Al/;.  R.  119. 

D.  Goodwin,  in  support  of  the  plea. 

The  plea  sets  Ibrtii  an  accounting,  settlement,  notes,  fur  balance, 
and  an  agreement  by  the  complainants  to  indemnify  the  defendant 
against  all  his  doings  as  trustee,  and  all  los.ses  and  liabilities  arising 
therefrotp. 

Pirsl.  To  a  bill  for  an  account,  an  account  stated  and  a  settlement, 
constitute  a  good  plea  in  bar,  and  such  account  can  be  opened  only  in 
case  of  a  pal|)able  mistake  or  iVaud.  So  a  release  is  a  good  bar  to  such 
or  any  bill,  and  can  only  be  set  aside  for  fiuud.     2  Cond.  Rep.  110. 

Second.  Here  notf)nly  a  settlement  and  a  nuie  i'ur  the  balanct;  due 
and  agreed  upon  on  accounting  are  shown,  but  also  an  agreement  by 
(hese  very  complainauLs  to  indemnify  the  defendant  in  respect  to  the 
matters  complained  of.  This  is  stronger  than  a  release.  If  com- 
plainants succeed,  defendant  has  directly  an  action  against  them  co- 
extensive with  their  recovery.  This  a  Court  of  Chancery  will  qever 
tolerate,  on  the  contrary,  if  complainants  could  for  the  cause  alleg- 
ed, proceed  and  recover  at  law,  a  Court  of  Chancery  would  upon  this 

Vol.  I.  51 


400  CASES  IN  CHANCERY. 

I- irsi Circuit.  f^g,.ee^-^-,(3JJt  enjoin  them  from  so  d  oing  and  prevent  the  cross  actions 

sdivv;irz.    On  the  covenant  Schwarz  and  Hastings  arc  personally  liable,  as  Wen" 

Wciidcii     dell  was  on  the  note  he  gave  to  the  bank.  2  Wheat  R.  45;  4  Pet  Cond. 

Rep.  25;  2  Am.  Com.  Laic,  103  ;  8  Coio.  R.  81  ;  9  John.  R.  334; 

7  Coiv.  R.  453. 

Third.  Upon  the  bill  there  is  not  enough  shown  to  entitle  com- 
plainants to  relief.  The  settlement  was  long  after  the  transactions 
out  of  which  the  complaint  arises,  and  surely  parties,  cestui  que  trusts 
as  well  as  others,  may  settle  their  own  affairs,  and  here  it  is  done* 
1  Pet.  Dig.  432 ;  1  Bald.  C.  C.  R.  418.  A  cestui  que  trust 
whether  feme  covert  or  otherwise,  is  in  equity  owner  of  the  estate, 
and  may  devise,  alien  and  incumber  for  debts.  A  married  woman  may 
even  mortgage  the  estate  held  in  trust  for  her  husbands  debts,  1 
Madd.  R.  453  ;  2  Kent  Com.  162. 

Fourth.  The  agreement  to  indemnify  (which  is  tantamount  tio  a 
release  and  more)  is  not  mentioned  in  the  bill.  It  must  have  full  and 
complete  elTect.  It  forms  a  perfect  bar  and  could  only  be  set  aside 
for  fraud,  clearly  and  conclusively  shown,  and  upon  allegations  and 
averments  in  a  bill  framed  with  that  view. 

The  Chancellor. — The  plea  in  this  case  is  insufficient.  It 
n)erely  sets  up  the  settlement,  release  and  covenants,  and  that  the 
note  was  given  for  the  balance  found  due  to  him.  It  does  not  state 
the  manner  in  which  the  account  was  rendered. 

It  is  alleged  in  the  bill  that  the  claim  for  which  the  note  in  ques- 
tion was  given,  arose  from  the  profits  of  the  speculation  upon  the 
Erie  lots  therein  mentioned  ;  that  the  profits,  if  any,  arose  from 
the  use  of  the  funds  of  the  cestui  que  trust,  and  that  the  amount  was 
presented  on  a  slip  of  paper,  and  unintelligible,  and  that  the  pres- 
ent trustee,  Mr.  Hastings,  executed  the  covenant  without  any  knowl- 
edge of  the  facts. 

The  rule  is  very  well  slated  by  Lord  Reddesdale  in  the  case  af 
Roche   vs.  Morgell  2  Sch.,  Lcf.  726-     He  says  : 

"Upon  the  argument  of  a  plea  every  fact  stated  in  the  bill  and 
"  not  denied  by  the  answer  in  support  of  the  plea,  must  be  taken  as 
♦'  true.  The  plea  to  the  relief  (of  a  stated  account,)  ought  to  have 
"  averred  that  the  accounts,  settled  all  dealings  between  the  parties  , 
"  that  the  accounts  -were  just  and  fair  and  due  ;  and  these  averments 


CASES  IN  CHANCRRY.  401 

"oiiglit  to  have  been  supported  Ijy  .in  answer  to  llie  same  cllrcl.'      rir»u'irciiii 

The  same  rule  is  also  substantially  staled  by  tlic  same  high  autlior-  siiiu-arz 
ity  on  the  subject  oi'  pleading  in  Mil.  Pi.  2G2,  &c.  There  arc  wemicii. 
many  other  authorities  sustaining  this  rule. 

Without  going  into  the  consideration  of  the  other  point  raised  at 
the  hcaiing  as  to  the  relation  of  the  i)arties  as  trustee  and  cestui  que 
trust  at  this  time,  (which  would  now  perhaps  be  admitted,)  I  must 
say  that  this  seems  to  me  a  very  proper  case  for  the  application  of 
the  rule.  The  covenant  entered  into  by  Mr.  Hastings,  the  new  trus- 
tee, and  the  other  complainants  under  the  circumstances  alleged  in 
the  bill,  cannot  vary  the  rule. 
The  plea  must  be  overruled. 
A  rehearing  of  tliis  cause  on  the  plea  filed  was  granted. 

JoY&;  Porter,  for  complainants. 

D.  GoodNVin,  for  defendants. 

The  Chancellor. — A  plea  is  a  special  answer  to  a  bill  demand- 
ing the  judgment  of  the  court  in  the  first  instance  whether  the  special 
matter  urged  by  it,  does  not  debar  the  complainant  from  his  title  to 
an  answer  which  the  bill  requires. 

The  rule  as  to  pleas  which  was  stated  on  a  former  occasion  is  ad- 
mitted to  be  the  correct  one  ;  the  propriety  of  its  application  to  the 
case  under  consideration  is  however  questioned. 

It  is  not  necessrry  to  reiterate  at  much  length  the  allegations  of 
this  bill  as  they  were  before  fully  stated.  The  allegation  that  this 
claim  of  five  thousand  dollars  in  substance  and  fact  arose  from  the 
use  of  the  trust  funds,  used  in  a  supposed  speculation  in  lands  at 
Erie  is  not  denied.  It  is  further  alleged  that  this  demand  was  unex- 
pectedly made  when  the  parties  had  met  together  to  execute  the 
deeds.  That  it  was  a  surprise  upon  the  cestui  que  trust,  that  the  de- 
fendant insisted  that  the  cestui  que  trust  should  purchase  this  interest, 
that  he  insisted  upon  its  present  settlement,  that  it  was  yielded  to  has- 
tily and  for  the  purpose  of  getting  the  property  out  of  the  hands  of 
the  defendant;  that  the  new  trustee  signed  the  note  without  any 
knowledge  of  the  facts  and  circumstances  stated  in  the  bill. 

It  is  farther  charged  that  no  part  of  the  $4,000  received   by  the 
trustee  has  been  repaid  to  the  complainants  or  any  of  them,  and  that 


4()2  '         CASES  IN  CHANCERY. 

First  Circuit  jj^^y  ^j^jjy  {jgijeve  that  a  large  balance  of  said  money  still  remains 
Sciivvarz.  i"  ^^he  hands  of  said  defendant,  and  unaccounted  for  by  him,  and  that 
Weniirii  the  account  was  presented  on  a  slip  of  paper  and  unintelligible.  The 
bill  also  prays  an  account  of  this  money,  as  well  as  to  be  relieved 
against  the  note,  and  for  such  further  and  other  relief  as  the  circum- 
stances of  the  case  may  require.  Now  whether  these  allegations 
relate  to  one  transaction  or  to  one  or  more  items  of  a  complicated 
account  can  make  no  difference  ;  and  without  reference  to  the  cove- 
nants set  up  by  way  of  defence  in  the  plea,  the  plea  unsupported  by 
an  answer  cannot  bar  the  complainants  from  an  answer  to  which 
they  are  entitled,  and  the  rules  of  pleading  as  before  stated  are  cor- 
rect, and  applicable  to  this  case. 

But  it  is  Insisted  that  the  covenants  not  being  alluded  to  in  the  bill, 
cronstituie  a  bar  to  the  relief.  The  indenture  containing  these  cove- 
nants bears  even  date  with  the  alleged  settlement  and  note.  It  is  as 
follows,  as  stated  in  the  plea  (after  the  preliminary  recital,)  that 
'"  this  defendant  had  eJceclited  various  deeds,  entered  into  se^^eral 
"covenants  and  done  other  matters  at  the  request  of  the  parties 
"  of  the  first  part,  (the  isaid  Catharine  and  the  said  John  E.,) — 
"some  or  all  of  which  might  then  create  a  personal  liability  on  the 
"  part  of  the  defendant,  and  thai  this  defendant  had  by  deeds  of  equal 
"  date  therewith  assigned  overto  the  said  Eurotus  P.  his  heif-iS  arid  as- 
"  signs  at  the  request  and  by  the  desire  and  appointment  of  the  said 
"  Catharine,  all  the  said  trusts  and  all  the  trlist  property  belonging 
*'  to  the  said  Catharine  heretofore  vested  in  him;  and  that  the  said  John 
"E.  in  and  by  the  said  indenture,  in  consideration  of  the  premises  and 
•'  of  the  sum  of  one  dollar  therein  acknowledged  t6  have  been  received 
"from  this  defendant,  did  for  himself,  his  heirs,  executors  and  ad- 
'•  ministrators,  covenant,  promise  and  agree  to  and  with  this  defend- 
♦ant,  his  heirs,  executors  and  administrators,  that  he,  the  said  John 
"  E.,  should  and  would  well  and  truly  save  harmless  and  indemnified, 
"  and  keep  defended  this  defendant  and  hislegal  representatives  of  and 
"  from  all  acts,  deeds,  covenants  and  other  doings  which  he,  this  de- 
'=  fendant  at  any  time  theretofore  had  done,  committed,  executed  or 
'♦entered  into  as  trustee  as  aforesaid,  or  in  the  execution  of  the 
"  said  trusts,  and  of  and  from  all  consequences  and  liabilities  of  ev- 
"ery  kind  or  nature  then  existing,  or  which  might   thereafter  arise, 


CASES  IN  CMANCRRY.  40:{ 

"  tor  or  by  reason  of  his  (tliis  (lefendant's)  having  acted  as  suchtrusl  P'''»' *''•■'•""■ 
"  tee,  and  should  and  would  reimburse  this  delendant  and  liis  said  rep-   ^,  i,wurz 
"  resentatives  all  such  losses  or  sums  of  money,  it"  any,  as  ho  or  they    wviMieii. 
"  miglit  be  legally  compelled  to  pay  or  sustain  for   or  by    reason  ot' 
"  his  (this  defendant's)  having  accepted  the  said  trusts." 

It  was  held  in  the  case  of  Roche  vs.  Morgell,  liuU  a  plea  of  a  re- 
lease unsupported  by  an  answer  was  insuflicient)  although  the  same 
objection  was  there  urged,  which  is  now  taken,  that  the  bill  did  not 
refer  to  it,  and  pray  that  it  might  be  set  aside. 

Certainly  no  greater  effect  can  be  given  to  this  statement  than  to 
an  express  release.  On  the  contrary,  1  have  strong  doubts  whether 
the  covenants  set  out  in  this  plea  were  intended  to  extend  to,  or  do  in 
fact  reach  the  case  made  by  the  bill  at  all. 

The  manifest  intent  and  object  of  this  instrument  was  to  indemnify 
and  save  harmless  the  trustee  from  any  act  done  by  bim  in  the  exe- 
cution of  his  trust.  The  prayer  of  the  bill  among  other  things,  is 
that  he  may  account  for  money  belonging  to  the  trust'  fund,  which 
they  charge  to  be  in  his  hands  unaccounted  for.' 

It  would  in  my  view  be  going  very  far  to  say  that  these  covenants 
shall  bar  and  preclude  the  complainants  from  an  answer,  when  in 
fact  they  were  intended  for  another  and  a  different  purpose.  iBut  I 
do  not  intend  to  dwell  upon  this  view  of  the  case,  as  it  is  not  now  in- 
tended to  preclude  the  defendant  from  whatever  benefit  he  can 
properly  derive  from  tliis  defence  when  supported  by  an  answer. 

Enough  has  been  shown,  1  think  to  justify  the  conclusion  that  the 
plea  is  insufficient.  To  obviate  any  embarrassment  which  may  l)e 
apprehended  from  the  form  of  the  entry,  the  order  will  be  that  the 
plea  stand  for  an  answer  with  liberty  to  accept. 


404  CAf^ES  IN  CHANCERY. 


•2m(I  lirciiit.  Daniel  J.  Sixclaiu,  vs.  Addison  J.  Comstock,  et.  al. 

Siiiiliiir.      AVIren  the  proprietors  of  a  village  or  lown  have  dedicatetl  lots  for  streets  or  for  a  public  square 

Comslock.        and  have  sold  lots  wiili  reference  to  such  plan,  lliey   cannot  rcsiiine  and  exercise  ads  of 

(ownership  over  the  landtlins  ilcdicalcd,  wliicli  will  deprive  tliclr  grantees  of  any  privde- 

ges  which  lliey  might  derive  from  having  such  streets  or  squares  left  open.    But  in  every 

such  case  the  drdicalion  for  ilie  purpose  claimed,  must  be  made  clearly  apparent. 

Where  a  Irtl  in  the  village  of  Adrian  was  granted  lo  the  county  for  the  purpose  of  erecting  n 
court  house  and  jail  thereon,  and  ihe  county  erected  a  court  house  and  jail  on  another  and 
different  lot  in  the  same  village;  it  was  held  that  this  was  sufflcinnt  evidence  of  the  refusal  ofthe 
county  lo  aecepl  the  donation  according  lo  the  condition  of  the  grant,  and  that  it  must  in  fact 
revert  lo  the  donor;  and  that  persons  inirchasing  lots  adjoining  had  no  right  to  insist  that  this 
lot  should  be  kept  open  as  a  public  sijuare or  common. 

Motion  to  dissolve  injunction  on  bill  and  answer. 

Tiie  bill  of  complaint  alleges  that  the  plan  or  plat  of  the 
village  of  Adrian  was  laid  out  in  1827-8  by  Addison  J.  Comstock, 
one  of  the  defendants,  who  was  the  owner  of  the  lands  constituting 
the  same.  The  plat  of  said  village  was  duly  recorded  in  the  Regis- 
ter's office  as  required  by  the  statute.  On  the  plat  lot  number  14, 
was  given  by  the  proprietor  to  the  county  of  Lenawee,  for  a  court 
house  and  jail.  At  the  time  the  village  of  Adrian  was  laid  out,  the 
county  seat  of  said  county  was  at  Tecumseh  ;  and  it  was  the  inten- 
tion of  the  proprietor  that  lot  14  should  be  used  as  well  for  a  public 
square  as  for  a  court  house  or  jail.  That  it  had  been  so  used  from 
the  time  said  village  was  laid  out  with  the  knowledge  and  assent  of 
the  defendant. 

The  bill  states  that  the  defendant  sold  lot  49,  adjoining  lot  14,  and 
described  the  same  as  bounded  on  the  north  by  ihe  public  square  ;^=- 
that  lot  49  had  been  subdivided  and  sold,  and  the  purchasers  had 
erected  on  the  same  valuable  buildings  fronting  on  the  public  square 
as  described  in  the  deed  of  lot  49,  with  the  full  belief  that  lot  14  would 
always  remain  a  public  square  for  the  common  benefit  of  the  inhabi- 
tants of  said  village.  The  bill  alleges  fhe  defendant  had  full  knowl- 
edge of  the  expectation  of  those  who  erected  the  buildings  fronting 
lot  14,  and  made  no  objection  thereto. 

The  bill  also  alleges  that  the  defendants  with  others  made  additions 
to  said  village  plat,  and  procured  to  be  published   a  map  of  the  said 


CASES  IN  CHANCERY.  405 

village,  upon  which  lot  number  11  was  designated  as  a  jmblic  square,  -""'  '^■"■'^"" 
and  another  lot  was  designated  as  the  site  of  the  court  house  and  jail.     ^|,n.|;„r. 
and  called  Court  House  Square.  Loii"tock. 

That  the  complainant  believing  lot  14  would  always  remain  open, 
purchased  one  of  the  subdivisions  of  lot  49,  fronting  on  the  public 
square  or  lot  14. 

By  an  act  of  the  legislature  approved  21  March  183G,  it  was  de- 
clared the  county  seat  should  be  established  at  Adrian,  from  and  af- 
ter the  first  Monday  of  November,  1838-  On  the  6th  of  June,  1837, 
the  defendant,  Comstook,  deeded  to  the  Supervisors  of  the  county  ol 
Lenawee,  a  piece  of  land  at  or  near  the  village  for  a  court  house  and 
jail.  On  the  5th  of  June,  1837,  the  defendant,  Comstock  deeded  lot 
14  to  George  Crane,  his  heirs  and  assigns  in  fee  simple  without  con- 
sideration. Immediately  after  this  conveyance  Crane  caused  public 
notice  to  be  given,  that  he  would  sell  at  public  anction  lot  14,  the 
same  having  been  subdivided  into  ten  lots.  Tiie  complainant  and 
others  also  who  had  purchased  parts  of  lot  40,  as  subdivided,  caused 
public  notice  to  be  given  before  and  at  the  lime  of  the  selling  of  the 
subdivisions  of  lot  14,  that  Crane  had  no  right  to  sell  and  convey  the 
same,  as  it  was  reserved  for  a  public  square,  and  private  buildings 
could  not  be  erected  thereon,  and  that  his  right  to  the  same  would  be 
litigated.  Lot  14  as  subdivided  was  sold  however,  and  tlie  defendants 
became  the  purchasers.  The  bill  charges  that  the  defendants  are 
about  to  erect  buildings  on  lot  14,  as  subdivided,  by  which  the  com- 
plainant will  be  greatly  injured,  &c. 

The  answer  admits  tne  village  of  iVdrian  was  laid  out  as  stated,  and 
that  lot  14  is  on  the  plat  reserved  to  the  county  of  Lenawee  for  a  court 
house  and  jail.  At  the  time  of  the  laying  out  of  the  village  of  Adri- 
an the  county  seat  was  at  Tecumseh,  and  it  was  understood  and  rfe-. 
dared  that  lot  14,  was  only  to  be  used  for  a  court  house  and  jail  by 
the  county,  and  for  no  other  pur])0se  whatever  ;  and  the  statement 
was  repeatedly  made  to  the  citizens  of  Adrian,  and  the  defendant 
expected  if  the  same  was  not  used  for  the  purposes  for  which  it  was 
reserved  it  would  revert  to  liiin.  Answer  admits  that  on  the  first  of 
iMarch,  1828,  defendant  Comstock  acknowledged  the  plat  of  the  vil- 
lage of  Adrian,  and  under  his  hand  and  seal  granted  the  streets  and 
lot  14  for  the  purposes  named  and  expressed  on  the  map  of  the  plat 


406  CASES  IN  CHANCERY. 

2ii(i  ciiTuiiQi  g.^ij  village,  which  was  duly  recorded.  Lot  14  has  been  open  from 
Sinclair.     ^^^^^  Umc  until  the  present  with  the  knoAvlege  of  the  defendant,  but 

Conrsiock.  vvithout  any  express  assent  ;  Admits  there  was  a  bond  or  agreement 
asset  forth  in  the  bill  to  sell  lot  47,  in  which  it  was  described  as  bounded 
on  the  north  by  the  j)ublic  square,  and  on  December  28,  1835,  in  ac- 
cordance with  the  provisions  of  the  bond,  a  deed  was  made  bounding 
it  in  the  same  manner.  The  subdivision  of  lot  41)  is  admit- 
ted, and  the  sales  to  the  com[)lainants  and  others,  and  the  erection  of 
buildings;  but  it  isdenied  that  the  complainant  had  any  assurance  that 
lot  14  would  remain  open,  nor  had  he  any  reason  to  believe  the  defen- 
dants would  ever  assent  to  it  remaining  open  and  unoccupied,  for  Com- 
stock  had  asserted  and  given  notice  before  and  at  the  time  of  the  sale 
of  lot  49,  and  before  and  at  the  time  of  the  erection  of  the  buildings 
thereon,  that  he  should  claim  lot  14  if  the  county  did  not  use  it  for 
the  purpose  specified  in  the  grant  to  the  county.  The  answer  admits 
the  making  of  an  addition  to  the  village,  the  publishing  a  map,  as 
alleged  in  the  bill  upon  which  lot  14  is  designated  as  a  public  square, 
and  another  lot  is  called  "Court  House  square,"  but  denies  that  Coni- 
stock,  the  defendant  ever  assented  to  the  map's  being  made,  and 
avers  that  it  docs  not  correspond  witli  the  oiginal  on  record;  admits 
the  change  of  the  county  seat  from  Tecumseh  to  Adrian  in  Novem- 
ber, 1838  ;  athnits  that  defendant  did  convey  to  the  county  of  Lena- 
wee a  lot  for  a  court  hou.^e  and  jail  in  June,  1837  ;  admits  that  de- 
fendant, Comstock,  on  June  5,  18iJ7,  conveyed  lot  14  to  Crane  ;  ad- 
mits that  by  act  of  the  Legislature  the  Board  of  Supervisors  had  the 
authority  to  fix  the  county  seat  or  court  house  on  such  lot  as  might  be 
conveyed  to  them,  and  that  they  did  so  fix  the  same  on  a  lot  between 
Front  and  Toledo  streets,  and  the  defendant  conveyed  the  same  to  t^ie 
Supervisors  on  the  7th  of  March,  1837,  and  that  it  was  understood  by 
the  Board  of  Supervisors  as  well  as  dofendont,  Comstock,  that  lot  14 
reverted  to  the  defendant.  Comstock  ;  but  he  agreed  at  that  time  to 
give  lot  14  or  the  aval  la  thereof  to  the  Board  of  Supervisors  for 
the  purpose  of  erecting  the  county  buildings  ;  and  George  Crane  was 
agreed  upon  as  commissioner  to  receive  the  title  and  sell  and  dispose 
of  the  same  for  the  benefit  of  the  county.  The  deed  was  made  to 
Crane  on  the  day  mentioned  in  the  bill,  and  Crane  gave  back  an  in- 
strument declaring  he  held  the  same  in  trust  for  the  county  to  be  dis- 


CASES  IN  CHANCERY.  407 

posed  of,  and  the  avails  used  in  erecting  county  buildings;  admits  that  -"''  <-''''<:"''• 

Crane  gave  no  other  consideration  than  as  above  mentioned,  and  that    «;jnc;ai,_ 

he  sold  the  same  as  trustee  for  the  county  duly  appointed,  at  public  cou"i'ock. 

auction  as  alleged  in  the  bill  ;  admits  the  complainant   gave  notice 

that  lot  14    was  a  public  square,  (Sec.  as  mentioned  in  bill  of  com-. 

plaint  ;    admits   defendants    are    about    to    erect   buildings   on     lot 

14,  as  subdivided,  but    denies    that   it  will    materially  obstruct   the 

view  of  the  complainant   from  lot  49,  as  there  is  a  street   30  feet 

in  width,  running  on  the  line  of  lot  14  and  betweenthat  and  lot  49. 

The  defendants  pray  to   have  the  same  advantage   as  though    they 

had  demurred  to  bill  of  complainant,  &c.,  «S:c., 

A.  Felch,  in  support  of  the  motion. 

The  original  grant  of  the  lot  in  question  (No.  14  in  the  village  of 
Adrian)  was  a  conditional   one,  being  given  for  a  court  house  and 
jail.     The  county  buildings  of  Lenawee  county  were  established  by 
law  at  the  time  of  laying  out  the  village  of  Adrian  at  Tecumseh. 

Whether  a  condition  he  jjrecedeiit  or  subsequent  will  depend  on  the 
intention  of  the  parties  creating  the  estate.  Findley  vs.  King,  3  Pet. 
R.  346. 

The  county  seat  could  not  be  changed  without  an  act  of  the  Legis- 
lature, nor  could  the  lot  in  question  be  used  for  the  purpose  designated 
without  such  an  act.  The  intention  of  the  parties  must  have  been 
therefore  to  set  apart  this  lot  for  the  purpose  of  putting  upon  it  a  court 
house  and  jail,  if  the  Legislature  should  pass  such  an  act.  The 
building  of  a  court  house  and  juil,  or  at  least  an  acceptance  of  the 
grant  for  that  purpose,  was  necessary  before  the  grant  took  elfect  and 
and  until  that  was  done,  both  the  fee  and  the  possession  remained  in 
Comstock. 

In  the  case  of  the  First  Parish,  in  Sutton  \s.  Cole,  3  Pick.  332, 
land  given  for  the  use  of  schools,  it  was  decided  could  not  be  recover- 
ed by  the  donors  until  they  had  accepted  the  grant  or  made  an  entry 
under  it. 

in  Hayden  vs.  Inh.  of  Stoughton  5  Pick.  R.  528,  there  was  an  ac- 
ceptance of  the  grant  by  vote  of  the  defendants. 

The  act  of  the  legislature  passed  in  1836,  establishing  the  seat  of 
justice  at  Adrian  from  and  after  November  1,  1838.  gave  to   the  Sa. 

Vol.  L  52 


40S  CASES  IN  CHANCERY. 

2nd  Circuit,  pervisoi'-s  the  right  to  put  the  county  buildings  on  this  lot,  or  such  oth- 
Sincinir.  ^1"  ^^"ds  as  might  be  given  for  that  purpose,  in  the  village  of  Adrian. 
conis'cck  They  were  subsequently  placed  by  them  on  another  lot,  which  was 
deeded  for  that  purpose  by  said  Comstock  March  7,  1837.  Tlie  ob- 
ject for  which  the  lot  in  question  was  given,  was  therefore  never  ac- 
complished ;  the  lot  was  never  accepted  nor  used  for  a  court  house  and 
jail  ;  on  the  contrary  the  act  of  the  Board  of  Supervisors  was  an  ex- 
press rejection  of  the  lot,  and  an  acceptance  of  another  from  the  same 
donor. 

A  condition  precedent  must  take  place  before  the  estate  can  vest  or 
be  enlarged,  and  until  the  condition  be  performed  the  estate  cannot  be 
claimed  to  vest.     2  Black  Com.  154. 

The  condition  must  be  literally  performed,  and  even  a  court  of 
chancery  will  not  vest  an  estate  when  by  reason  of  a  condition  pre- 
cedent it  will  not  vest  in  law.  Popham  vs.  Bomjifield,  1,  Ves.  83,  4 
Kenes  Com.,  125,  Vanhorn  vs.  Dorrena2  DaU.  R.  317,-SAep.  Touch. 
450. 

II.  If  it  be  conceded  that  the  grant  took  effect  immediately  on  recor- 
dino-  the  map  of  the  village,  the  occupation  of  the  lot  for  a  court  house 
and  jail  was  a  condition  subsequent,  and  the  location  of  the  county 
buildings  on  another  lot  was  a  relinquishment  of  all  right  under  the 
grants,  and  the  premises  reverted  to  the  donor. 

On  condition  broken  the  whole  property  reverts.  Shej}.  Touch  120, 
Gray  vs.  Blnnchard^  8  Pick.  R.  284.  ' 

Lands  given  on  condhion  that  the  public  buildings  of  the  parish 
be  erected  thereon  revert  to  the  donor,  if  the  seat  of  Justice  of  the 
Parish  be  removed  by  an  act  of  the  Legislature.  4  Ke7it's  Com., 
126. 

So  a  neglect  to  comply  with  the  condition  to  build  a  school  house 
for  twenty  years  operates  as  a  forfeiture  of  a  grant.  Hayden  vs. 
Inh.  of  Stoughton,  5  Pick.  R.  228,  Lessee  of  Sperry  vs.  Pond  Sfc, 
5  Ohio  R.  387  ;  Heirs  of  SuJlivant  vs.  Commissioners  of  Franklin 
Co.,'A  OkioR.,S9. 

This  too  is  the  express  provision   of  the  statute    of  the  state  under 
which  the  grant  was  made.     Statute  of  1833,  pogc  135. 

III.  The  part  of  the  lot  on  the   south  side  of  the  premises-  being 


CASES  IN  CIIANCKRY.  409 

deeded  in  December,  1335,  to  C.  Iloag,  and  described  as  bounded  on  -'"'  '^'f'""''- 
the  north  by  the  public   square,  gave  no  right  as  to  lot  Xo.  14.     It    gi„ciair. 
was  a  mere  description  of  the  lot  conveyed.     The  sale  was  made  of  comstcck. 
a  village  lot  by  its  number,  and  in  reference  to  the  village  plat  on  re- 
cord.    The  record  showed  the  true  character  of  the  grant  of  lot  No. 
14,  and  the  term  ''public  square''  could  have  been  understood   only 
as  applying  to  lot  No.  14,  as  there  given  and  not  otherwise.     The 
record  showed  that  the  only  interest  which  the  public  could    have  in 
it  was  to  occupy  it  for  a  court  house  and  jail. 

But  the  record  is  notice  lo  the  world  of  the  character  of  the  grant. 
Price.  ^'  al.  vs.  Methodist  Church,  Ohio,  R.,  515. 

The  term  way  or  highway  has  in  law  a  fixed  definite  signification, 
always  implying  certain  legol  rights.  Not  so  with  the  term  public 
square.  It  has  no  fixed  legal  meaning.  It  implies  no  covenant  and 
works  no  estoppel.  It  is  like  any  other  term  description  of  limits, 
and  is  to  be  taken  in  its  general  acceptation.  This  by  no  means  im- 
plies that  it  should  be  what  the  complainants  claims,  in  open,  unen- 
closed space.  And  in  this  case  the  answer  shows,  that  at  the  time  of 
the  conveyance  to  Hoag,  and  subsequently,  it  was  understood  and  de- 
clared to  mean  that  the  lot  was  intended  for  public  use  for  a  court 
house  and  jail  and  not  for  a  str-eet  or  common. 

Besides,  the  lot  conveyed  to  Hoag  neither  had  nor  required  these 
premises  to  give  access  to  it.  It  had  its  front  or  main  street,  and  has 
been  subdivided  since  the  purchase  was  made  of  Comstock. 

IV.  If  the  lot  did  not  revert  to  Comstock,  but  the  fee  is  still  in  the 
county  under  the  grant,  the  complainant  is  in  no  better  position  and 
must  fail  in  the  suit.  By  the  grant  of  a  lot  for  a  court  house  and  jail, 
no  right  is  given  to  the  owners  of  adjoining  lots  to  require  it  lo  bo 
kept  unfenced,  or  without  buildings  or  open  as  a  street  or  highway 
Indeed  this  would  defeat  the  very  object  of  the  grant. 

In  the  case  of  the  Cambridge  Common,  it  was  decided  that  <>nclo- 
singitwitha  fence,  excluding  travel  by  horses,  carriages,  teams, 
planting  trees,  6z;c.,  was  not  inconsistent  with  the  grant  ;  but  the  land 
being  appropriated  to  a  specific  public  use,  a  highway  over  it  would 
be  inconsistent  with  the  grant.     16  Pick.  R.  87. 

Under  the  grant  for  a  court  house  and  jail  there  is  a  full  right  not 
only  to  enclose  the    premises  and  to  erect  thereon  a  court  house  and 


410  CASES  IN  CHANCERY. 

2ml  Circuit,  jai},  but  bams,  stables  and  all  necessary  outbuildings  for  the  use  of 
'Sinclair  ^^^  jailor  and  others  necessarily  having  charge  of  the  public  buil- 
Convstock.  dings.     Jacksouxs.  Pike,  9  Coio.  R.  69. 

And  an  occupying  of  the  premises  in  the  ordinary  mode  of  occu- 
pying village  lots  is  not  inconsistent  vi^ith  the  grant.     Id. 

V.  So  far  as  even  the  imaginary  rights  of  the  complainant  can  go 
the  lots  on  the  south  side  of  the  premises  in  question  are  abundantly 
provided  for,  in  the  location  gratuitously  by  the  defendants  of  a  street 
thrty  feet  wide  adjoining  lot  No.  49. 

VI.  Here  was  no  dedication  of  the  land  to  the  public  for  the  pur 
poses  claimed  in  the  bill.     Such  dedication  supposes  an  act  to  be  done 
by  the  owner  in  fee  ;  this  act  must  be  unequivocal,  and  evidence  an 
intention  to  grant  the  land  for  the  purposes  claimed  where  the  origin 
al  owner  continues  to  exercise  any  acts  of  ownership  over  the  prem- 
ises, or  denies  the  right  of  the  public  to  it,  or  claims  rights  in  himself 
inconsistent  with  such  dedication,  it  prevents  a  dedication.     Even  a 
disability  to  exercise  acts  of  ownership   over   it  will    prevent  it.     5 
Taimt.  137  ;  10  Serg.  ^  Raw.  412  ;   Wood  vs.  Veal,  5  Barn.  8f  Aid. 
454  ;  Harper  vs.  Charlesu-orth,  1  Barns.  Sf  Cres.  674  ;  Price  Sf  al. 
vs.  Methodist  Church,  4  Ohio,  i?  15. 

The  facts  disc  losed  by  the  bill  and  answer  forbid  the  idea  of  a  ded- 
ication of  the  lot  in  question,  to  be  kept  open  without  fence  and  with- 
out buildings.  They  show  on  the  contrary  that  it  was  set  apart  for  a 
purpose  totally  different,  and  every  act  of  the  donor  in  reference  to 
the  lot  has  been  in  accordance  with  the  grant  last  mentioned.  The 
answer  shows  that  before  the  deeding  of  the  lot  owned  by  complainant 
at  the  time  of  deeding  it,  and  subsequently  to  that  time,  he  denied  the 
dedication  of  the  lot  for  the  purposes  demanded  in  the  bill,  and  claimed 
full  and  perfect  right  to  the  same,  subject  only  to  the  interest  acquired 
by  the  p  ublic  for  the  uses  designated  in  the  plat  of  the  village  of  Adrian. 
Baker,  Harris  &  Millard,  contra. 

The  estate  conveyed  to  the  county,  is  not  properly  a  trust  estate. 
No  trustee  and  cestiii  que  trust.  The  title  is  absolute,  except  that 
they  take  on  condition  of  devoting  it  only  to  a  particular  use ;  and 
equity  would  restrain  from  any  other  use.  It  conveys  thefeeinpre- 
^enti,  although  the  county  seat  was  not  then  established  at  Adrian 


CASES  L\  CHANCERY.  41 1 

and  there  was  no  assurance  that  it  ever  would  be.     Suppose  it  never  2..acircui.. 
had  been,would  the  land    have  reverted  1     and  if  so,  when  ?     And    gi„^,^, 
suppose  it  had  been  removed  from  Tecumseh  to  Palmyra,  would  the  coiu'tock 
land  have  reverted  ?     How  does  it  appear  but  that  the  county   seat 
may  3til)  at  some  time  be  established  on  this  lot.     Laws  of  Michigan 
1833,  page  531. 

Comstock  has  dedicated  the  land  to  tlie  public,  and  given  reason  to 
expect  that  it  Would  always  remain  a  public  square. 

1.  By  leaving  it  open  and  allowing  ii  to  be  so  used  from  the   time 
of  laying  out  the  village. 

2.  By  designating  it  as  the  public  square,  in  solemn  instruments. 

3.  By  having  maps  lithographed  and  circulated,  with  this  lot  mark- 
-ed  as  a  public  square,  and  another  as  a  court  house  square,  after  the 
county  seat  had  been  removed.  Though  the  answer  states  that  Finch 
(Comstock,  partner  in  the  concern)  procured  the  maps,  it  does  not 
deny  a  knowledge  or  participation  on  the  part  of  Comstock,  nor  that 
he  circulated  them. 

These  are  unequivocal  acts  which  amount  to  a  grant  to  the  public, 
independant  of  the  consequence  on  the  original  plat,  and  from  which 
ihe  individuals  concerned  were  fully  justified  in  concluding  that  it 
was  always  to  be  a  public  square. 

The  location  of  the  court  house  and  jail  upon  anotiier  lot  instead 
of  this,  having  been  made  by  Comstock's  own  consent  and  procure- 
ment, he  cannot  take  advantage  of  it  as  a  forfeiture. 

Comstock  having  conveyed  to  Hoag,  (under  whom  complainant 
claims)  and  described  this  lot  as  the  "  public  square,  "  and  bounded 
the  lot  conveyed,  by  the  "  public  square,  "  is  estopped  from  denying 
that  it  is  such. 

The  act.  to  provide  for  the  recording  of  town  plats,  &c.,  approved 
April  12, 1827,  made  it  necessary  for  Comstock  to  make  and  record 
a  plat,  bounding  and  specifying  all  the  streets  and  public  grounds,  and 
what  the  lands  so  described  were  intended  for,  and  the  acknowledg- 
ment and  recording  vested  in  the  fee  of  such  land  in  the  county  ;  and 
the  statute  expressly  recognised  the  title  as  in  the  county,  by  the  pro- 
visions, that  such  plat  should  not  afterwards  be  altered,  unless  satis- 
factory proof  was  adduced,  that  all  persons  orcning  any  lot  or   part 


412  CASES  IN  CHANCERY. 

2n(i  chnut.  iJi(,,.^of  had  agreed  lo  stich  alteration ;  by  this  means  protecting  ac- 
fmcWu-     knovvledged  rights  of  persons,  who  had  purchased  with  a  view  to  the 
t'omstock.  advantages  o(  the  public  ground  so  set  apart ;  and  not  subject  to  any 
condition  either  subsequent  or  precedent. 

The  provisions  in  section  four  of  the  act  to  amend  an  act  to  pro- 
vide for  establishing  seats  of  Justice,  on  page  534  of  Laws  of  Mich- 
igan, (1833)  do  not  apply  to  this  case;  as  this  conveyance  from  Com- 
stock  was  made  under  another  and  entirely  different  law,  relating  to 
towns  generally,  and  not  to  county  seats,  and  under  which  the  donor 
could  h'^ve  no  grounds  for.  claiming  a  reversion;  and  farther,  if 
it  did  ever  apply  to  cases  like  the  one  now  under  consideration,  it 
can  have  no  influence  here,  as  it  was  in  1835  repealed,  long  prior 
to  anything  done  herein. 

The  Chancellor. — There  is  no  doubt  that  when  the  proprietors 
of  a  village  or  town  have  dedicated  lots  for  streets  or  for  a  public 
square,  and  have  sold  lots  with  reference  to  such  plan,  they  cannot  re- 
sume and  exercise  rights  of  ownership  over  them,  which  will  de* 
prive  their  grantees  of  any  privilege  which  they  might  derive  from 
having  such  streets  or  sqares  left  open. 

But  in  every  such  case  the  dedication  for  the  purpose  claimed  must 
be  made  clearly  apparent.  The  lot  in  question  was  granted  to  the 
county  of  Lenawee  for  the  purpose  of  a  site  for  a  court  house  and 
jail.  The  original  dedication  shows  that  such  was  the  special  purpose 
to  which  it  was  dedicated ;  and  the  answer  of  Comstock,  the  origin- 
al proprietor  shows  that  it  was  granted  for  this,  and  no  other  purpose; 
and  stales  that  it  was  always  so  declared  by  him. 

The  proper  authorities  of  the  county  of  Lenawee  designated  an- 
other, and  a  different  lot  for  this  purpose,  and  have  actually  erected 
the  court  house  and  jail,  on  another  and  different  lot  in  the  village  of 
Adrian. 

Comstock,  the  original  proprietor  having  transferred  this  lot  orig- 
inally dedicated  for  a  court  house  and  jail,  the  present  complainant 
claims  that  it  shall  be  kept  open  and  uninclosed.  Comstock,  in 
granting  the  adjoining  lot  to  the  grantor  of  the  complainant  describes 
the  adjoining  lot  as  bounded  on  the  public  square. 

If  this  lot  14  had  been  left  open  as  a  common,  and  not  designated 
upon  the  original  plat  as  having  been  dedicated  for  that  particular  pur- 


CASES  IN  CHANCERY.  n:) 

pose,  1  should  have  no  doubt  tluit  this  would  have  been  iield  as  sufli-  -'"'  ^'"'^""■ 
cient  evidence  that  this  lot  had  been  dedicated  for  the   general  use  of    jji„ciair. 
the  inhabitants  of  the  village  of  Adrian.  conisioek. 

But  when  it  appears  by  the  public  records  that  it  was  dedicated  to 
a  particular  purpose,  it  would  seem  that  this  phraseology'  must  have 
been  used  merely  by  way  of  description  and  was  not  intended  to,  and 
cannot  change  the  character  of  the  grant. 

In  order  to  sustain  this  injunction  it  is  necessary  to  require  that  a 
lot  granted  for  one  purpose,  and  to  be  used  in  a  particular  way, 
shall  in  fact  be  devoted  to  another  purpose,  which  requires  it  to  be 
used  in  a  different  manner. 

The  complainant  claims  that  it  shall  bo  kept  open  as  a  common,  or 
public  square.  The  record  shows  that  the  only  interest  the  public 
had  in  it.  was  to  occupy  it  as  the  site  for  a  court  house  and  juil  ;  and 
the  record  must  be  considered  as  notice  to  the  world  of  the  character 
of  the  grant.  By  a  grant  of  a  lot  for  a  court  house  and  jail,  no  right 
accrues  to  the  owners  of  adjoining  lots,  that  it  shall  be  kept  open  and 
unenclosed.  On  the  contrary,  it  is  to  be  supposed  that  if  occupied 
for  these  purposes  that  it  will  almost  necessarily  be  enclosed,  and  oc- 
cupied by  all  such  necessary  outbuildidgs  as  may  be  appendant,  such 
as  a  jail  yard,  the  usual  stable  and  necessary  outbuildings  for  the  use 
of  the  gaoler  and  his  family. 

The  act  of  the  commissioners  establishing  these  buildings  else- 
where, seems  to  me  a  sufficient  evidence  of  the  refusal  of  the  coun- 
ty to  accept  this  donation  according  to  the  condition  of  the  grant,  and 
that  it  must  in  fact  revert  to  the  donor. 

Whether  this  shall  be  the  effect  or  not,  this  complainant  has  no 
right  to  insist  that  it  shall  be  kept  open  as  a  public  square  or  common, 
when  from  the  terms  of  the  grant  it 'is  apparent  that  such  was  not 
the  intention  of  the  donor  ;  But  on  the  contrary,  from  the  object  of 
the  grant,  if  accepted  and  used  for  the  purpose  intended,  it  must  nec- 
essarily have  been  occupied  and  enclosed. 
Injunction  dissolved. 


414  CASES  IN  CHANCERY. 


3r(i  circuii.  Rodney  C.  Payne,  vs.  Robert  B.  Atterbury. 

Payne.       Where   from  the  answer    itself  there  is  a  strong  presumption  against  tlie  defendanta  titles, 

va.  which  ia  impeached  by  the  bill,  the  court  will  grant  a  receiver. 

Atterburry  »  j  .  s 

Nothing  can  be  clearer  both  in  law  and  equity  and  from  natural  justice  than  thatthe  com- 
plainant is  entitled  to  the  rents  and  profits  from  the  time  his  title  accrued;  and  the  case  ia 
still  stronger  where  there  are  large  outstanding  incumbrances  ;  and  no  part  ot  the  rents  and 
profits  is  applied  to  keep  down  the  interest,  and  the  defendant  is  totally  irresponsible,  and  is 
holding  over  against  his  own  deed.     In  such  a  case  the  complainant  is  entitled  to  a  receiver 

A  receiver  will  be  appointed  in  behalf  of  a  vendor  as  against  a  vendee  who  has  obtained 
possession  and  refuses  to  pay  the  purchase  money. 

Where  the  answer  admitted  a  deed  referred  to  in  llie  bill  and  slated  no  fact  which  invali- 
dated it,  lut  denied  generally  its  validity,  il  was  held  to  be  insufScient — that  it  was  swearing 
to  a  conclusion  tiie  deed  itself  denied,  when  it  should  have  staled  the  facts  which  made  the 
deed  invalid  so  the  court  could  pass  upon  them. 

A  party  who  attempts  to  impeach  his  deed  in  court,  must  show  in  what  his  equity  consiata, 
for  as  aquestion  of  law  he  is  estoped  from  denying  his  own  deed.. 

A  vendee  vvho  has  paid  the  purchase  money  punctually,  has  a  lien  as  against  the  vendor  anala- 
gous  to  that  of  a  vendor  against  a  vendee  who  has  not  paid  the  purchase  money. 

The  bill  in  this  case  states  that  Dec.  8,  1838,  defendant  became  the 
purchaser  of  the  N.  E.  qr.  of  sec.  No.  14,  town  7  S.  range  17  W., 
containing  159  28-100  acres  ;  also  the  N.  W.  fr  qr.  of  sec,  13  town 
7  S.  range  17  VV.,  containing  136  46-100  acres.  That  soon  after 
such  purchase  defendant  mortgaged  the  same  to  George  W.  Walker, 
to  secure  the  sum  of  $2,500  which,  according  to  the  belief  of  com- 
plainant was  for  the  purchase  money  of  said  premises.  That  anoth- 
er mortgage  was  executed  by  defendants  upon  the  same  premises  ta 
John  Hamilton,  to  secure  the  sum  of  $1,000,  which  according  to  the 
belief  of  complainant  was  also  for  purchase  money.  That  the  defen- 
dant purchased  said  premises  subject  to  a  mortgage  made  by  John 
Hamilton  to  Alfred  Stanton  for  $2,000,  also  subject  to  a  mortgage 
made  by  Jacob  Beeson  to  George  Kimmel,  upon  which  there  was  due 
at  the  time  of  the  purchase  about  $1,000.  That  defendant  came  to 
Michigan  from  New  York  in  the  spring  of  1839,  and  commenced 
erecting  a  large  flouring  mill  upon  that  part  of  the  premises  descri- 
bed as  the  north-east  quarter  of  section  fourteen.  That  the  defend- 
ant was  possessed  of  little  or  no  means  for  carrying  on  and  complet- 
ing the  mill,  but  relied    on  his  credit  and  the  chance  of  procuring 


CASES  IN  CHANCERY.  416 

loans  of  money  for  that  purpose.     That  August  14,  1839,  defendant  'fJ^'ir^uu. 
applied  to  complainant  as  cashier  of  the  F.  &;  M.  Bank  of  Michigan,     Payne. 
at  St.  Joseph,  for  a  loan  of  money  to  be  used  in  erecting   said  mill,  Auerburry.. 
and  informed  complainant  that  he  had  funds  in  the  hands  of  Philip  S. 
Crooke  of  New  York  City,  who  would  accept  the  drafts  of  defendant 
and  would  certainly  pay  the  same   at  maturity.     That   confiding  in 
these  statements  complainant  made  a  loan  of  $2,000  to  the-  defend- 
ant upon  his  draft  drawn  upon  said  Crooke,  payable  four  months  af-- 
ter  sight.     That  August  24,  1839,  said  Crooke  accepted  the  draft  in 
writing  thereon.     That  September  14,  in  the  same  year,   defendant 
again  applied  to  complainant  for  another  loan  of  $3,000   upon  the 
same  kind  of  security,  and  complainant  having  confidence  in  the  in- 
tegrity of  defendant,   which  was  strengthened    by  the  ready  accept- 
ance of  the  first  draft  by  said  Crooke,  which  had  not  yet  matured, 
complainant  did  loan  and  advance   to   defendant   the  further  sum 
of  $3,000  to  aid  defendant  in  building  said  mill,  and  the  defendant  as 
security  therefor  drew  his  other  bill  of  exchange  dated  at  St.  Joseph 
September  14,  1330,  directed  to  said  Crooke,  payable  sixty  days  af- 
ter sight,  payable  to  the  order  of  R.  C.  Payne,  Esq.,  Cashier,  for  the 
sum  of  $3,000.     Thai  September  26,  the  same  was  accepted  by  said 
Crooke  in  writing. 

The  bill  further  states  tJiat  prior  to  the  drawing  of  the  first  men- 
tioned bill  or  draft,  defendant  had  borrowed  $200,  and  had 
drawn  on  said]  Crooke  to  pay  the  same  ;  that  said  Crooke  accep- 
ted said  draft,  and  defendant  made  provisions  for  the  payment  of  the 
same  out  of  the  money  obtained  on  the  $2,000  draft,  thereby  indu- 
cing the  complainant  to  believe  he  actually  had  money  in  the  hands 
of  Crooke  in  New  York. 

The  bill  further  states  that  the  complainant  commenced  suits  in 
the  Circuit  court  for  Berrien  county  in  the  spring  of  1840,  on  the 
two  drafts  of  $2,000  and  $3,000,  they  having  been  protested  for 
nonpayment ;  that  the  defendant,  Atterbury,  executed  a  deed  of  the 
premises  to  Crooke,  bearing  date,  March  1,  1839,  for  the  considera- 
tion of  $7,800,  subject  to  the  mortgages  aforesaid,  which  was  recor" 
ded  June  24,  1840.  The  bill  further  states  that  in  the  summer  of 
1840,  an  attachment  suit  was  commenced  against  Cwoke  by  thecom- 
VoL.  I.  53 


CASES  IN  CHANCERY. 

plainant  for  the  purpose  of  collecting  the  amount  due  on  the  drafts 
Payne      and  the  property  in  question  was  seized.     That  suit  was  finally  settled 

vs. 

Atterburry.  by  the  complainant  agreeing  to  take  a  deed  of  the  premises  and  pay- 
ing for  them  $2,191,  being  the  amount  of  some  lien  upon  the  premises 
on  which  Crooke  was  liable  and  surrendering  the  two  drafts  drawn  by 
Atterbury,  then  amounting  to  §i5,299.  On  the  14th  of  October,  1840,, 
this  negociation  was  consummated,  and  Crooke  deeded  complainant 
the  lands  described  with  the  mills  and  appurtenances. 

The  bill  states  that  various  offers  were  made  to  the  defendant  for 
the  purpose  of  finally  and  amicably  arranging  the  same,  but  he  has 
refused  to  do  any  thing  towards  paying  the  amount  due,  and  will  not 
yield  up  the-  premises  to  the  complainant  ;  that  a  suit  of  ejectment 
has  been  commenced  against  the  defendant  to  obtain  possession  of  the 
property,  but  in  the  mean  time  the  property  is  depreciating  in  value 
from  the  neglect  of  the  defendant  who  is  insolvent  and  unable  to  res- 
pond in  damages. 

The  bill  further  states  that  the  interest  on  the  several  mortgages 
has  not  been  paid  up,  but  is  suffered  to  accumulate  by  the  defendant; 
that  the  mill  is  out  of  repair,  and  from  neglect  of  defendant  there  is 
great  danger  of  the  dam  being  carried  away,  which  will  injure  the 
property  to  the  amount  of  $1,500  to  $2,000  ;  states  that  the  defend- 
ant has  made  threatsto  destroy  the  mill,  and  said  complainant  should 
never  have  any  benefit  from  it.  The  bill  prays  that  a  receiver  may 
be  appointed  of  the  rents  and  profits  of  the  mill  and  property  during 
the  pendancy  of  the  suit  in  ejectment. 

The  answer  admits  the  purchase  of  the  property,  and  that  it  is 
subject  to  the  several  mortgages  mentioned  ;  admits  the  obtaining  the 
money  on  the  drafts  on  Crooke,  and  that  he  paid  the  $200  draft  out  of 
the  money  obtained  on  the  $'2,000  draft ;  admits  the  drafts  were  pro- 
tested for  non-payment,  and  that  suits  have  been  commenced  against 
him.  His  answer  denies  the  deed  to  Crooke  was  valid,  as  it  wanted 
a  proper  acknowledgement  as  required  by  the  statutes  of  this  state, 
but  admits  it  has  been  placed  on  record  in  Berrien  county,  where 
the  lands  are  situated.  The  defendant  says  he  always  claimed  the 
property,  and  when  the  attachment  suit  was  commenced  against 
Crooke,  notified  the  complainant  to  that  effect ;  neither  admits  nor 
denies  the  settlement  between  complainant  and  Crooke  and  the  ta- 


CASES  IN  CHANCERY.  'HT 

kittg  of  the  deed  from  him  as  set  forth  in  the  bill  of  com|jlainant.—  ^"^  ^"'"'"'"^ 
Admits  various  propositions,  and  that  they  were  not  accepted  ;    de-     ,..,j.ne. 
nies  that  the  complainant  has  peaceably  and  quietly  attempted  to  ob-  Aucruurry. 
tain  possession  of  the  mill,  or  that  the  mill   is  out  of  repair,   or  has 
been  suffered  to  become  in  any   way  injured   for  want  of  repair,  or 
that  he  is  insolvent  and  unable  to  pay  the  amount  due   to  the  com- 
plainant ;  admits  the  interest  on  all  the  mortgages  has  not  been  paid; 
denies  that  he  is  abusing  the  mill  or  premises  ;  avers  they  are  in  good 
condition  ;  admits  he   may  have  used   hasty  expressions  about  the 
complainant's  obtaining  the  property  and  deriving  any  benefit  there- 
from ;  admits  complamant  has  requested  him  to  deliver  possession  of 
the  premises,  which  he  refused,  and  that  a  suit  in  ejectment  has  been 
commenced  ;  denies  pretences,  combination,  &;c. 

Green  &  Dana,  Sol.  for  comp,,  moved  for  the  appointment  of 
a  receiver  in  accordance  with  the  prayer  of  the  bill,  upon  the  bill 
answers  and  depositions  showing  the  value,  condition  and  situation  of 
the  property. 

V.  L.  Bradford  &  J.  G.  Atterbury  opposed  the  motion. 

The  Chancellor. — From  the  case  presented  the  complainant  has 
made  out  a  legal  title  to  the  property  in  question.  In  the  case  of  Still- 
well  vs.  Williams,  6  Madd.,  R.  39,  it  is  said  "that  where  from  the  an- 
swer itself  there  is  a  strong  presumption  against  the  defendant's  title 
which  is  impeached  by  the  bill,  the  court  will  grant  a  receiver."  The 
answer  of  the  defendant  in  this  case  shows  or  raises  a  strong  presump- 
tion of  title  in  the  complainant.  It  admits  the  deed  to  Crooke — the  deed 
fromCrooketo  the  complainant,  and  it  states  no  facts  which  invalidate 
it.  It  denies  generally  its  validity,  but  that  is  swearing  to  a  conclusion 
which  the  defendant's  own  deed  denies.  He  should  state  the  facts 
which  make  the  deed  invalid,  that  the  court  may  pass  upon  them,  and 
not  having  done  this,  his  deed  must  be  held  to  bind  him.  The  evi- 
dence in  the  case  raises  a  strong  presumption  that  the  defendant  in 
attempting  to  evade  the  payment  of  his  debts  was  so  far  guilty  of  a 
fraud,  as  ihat  he  could  be  estopped  from  setting  up  the  facts  upon 
which  he  relies  even  as  against  Crooke  himself.  Indeed,  from  the 
testimony  of  Thomas  Constantine  and  John  S.  Chipman,  it  is  ap- 
parent that  this  must  be  so.     And  if  this  shall  prove  to  be  the  contin- 


418  CASES  IN  CHANCERY. 

3rd  Circuit,  ggncy  referred  to  in  the  answer,  it  would  constitute  no  defence  ei- 
payne.     ^her  in  law  or  equity.     He  should  have   shown    in  what  his   equity 

Aiterbur-ry.  consists,  for  as  a  question  of  law  he  is  estopped  from  denying  his  own 
deed.  A  receiver  will  be  appointed  in  behalf  of  a  vendor  as  against 
a  vendee  who  has  obtained  possession  and  refuses  to  pay  the  purchase 
money. 

It  is  held  in  15  Vescij,  344,  that  a  vendee  who  has  paid  the  pur- 
chase money  prematurely,  has  a  lien  as  against  the  vendor  analagous 
to  that  of  a  vendor  in  the  opposite  case.  The  defendant  as  the  case 
is  presented  is  holding  over  as  against  his  own  deed,  and  is  not  res- 
ponsible for  mesne  profits  or  permissive  waste.  The  amount  of  in- 
cumbrances including  the  drafts  paid  by  the  complainant  amounts 
with  interest  and  costs  to  about  the  sum  of  sixteen  thousand  dol- 
lars ;  this,  from  the  testimony,  must  be  the  full  value  of  the  proper- 
perty  or  more.  It  also  appears  that  the  property  could  and  should 
be  made  productive,  and  that  it  should  yield  sufficient  to  keep  down 
the  accruing  interest  on  the  incumbrances.  But  instead  of  that,  that 
nothing  whatever  is  paid  on  the  outstanding  mortgages,  some  of  which 
are  in  process  of  foreclosure,  and  which  the  complainant  must  extin- 
guish in  order  to  protect  himself;  that  a  property  which  should  pro- 
duce some  $2,500  per  annum,  is  actually  not  doing  more  than  about 
one-tenth  of  the  business  of  which  it  is  capable. 

The  evidence  in  regard  to  the  danger  of  the  property  is  contradic- 
tory, but  the  iveight  of  evidence  is  that  the  mill  is  badly  managed  and 
the  dam  in  a  hazardous  condition.  The  facts  show  bad  management, 
a  depreciation  in  the  value  ot  the  propert}-,  and  a  total  neglect  of  du- 
ty or  inability  to  perform  it  on  the  part  of  the  defendant.  The  case 
under  all  its  circumstances  is  one  pressing  itself  very  strongly  upon 
the  discretion  of  the  court.  There  is  a  large  amount  of  interest  con- 
stantly accruing  on  the  outstanding  incumbrances,  all  of  which  must 
fall  on  the  complainant.  This  valuable  property  which,  under  ordi- 
nary management  should  produce  sufficient  to  keep  down  the  incum- 
brances, is  actually  paying  nothing  upon  them,  but  the  interest  is  suf- 
fered to  accumulate,  and  the  defendant  is  irresponsible.  If  this  mo- 
-tion  is  refused  the  complainant  is  subjected  to  almost  irreparable,  in- 
evitalbe  injury,  for  which  he  has  do  redress.  No  rule  is  better  set- 
tled than  that  the  complainant  is  entitled  to  the  rents  and  profits  from 


CASES  IN  CHANCERY.  419 

the  time  his  title  accrued.     Lord  Hardwicke  in  Dormer  vs.  Fur/cscue  ^r.i circi.u. 
3  Atk.  R.,  128,  observes:  "Nothing  can  be  clearer  both  in  law  and     i,.,j,„e 
equity  and  frona  Natural   justice  than  tlmt  the  plaintiff  is  entitled  to  Aiterburry. 
the  rents  and  profits  from   the  time  his  title    accrued.'"      Green   vs 
Biddle  8   Wheal.,  1,    The  case  is  still  stronger  where  there  are  large 
outstanding  incumbrances,  and  no  part  of  the  rents  and  profits  are  ap- 
plied to  keeping  down  the  interest,    and    the  defendant  totally  irres 
ponsible. 

The  answer  of  the  defendant  is  in,  testimony  has  been  taken  ; — 
from  the  answer  and  testimony  it  results  that  there  is  imminent  dan- 
ger that  the  complainant  must  lose  the  intermediate  rents  and  profits 
unless  the  motion  be  granted  ;  that  the  interest  is  permitted  to  accu- 
mulate on  this  large  amount  of  incumbrances,  and  that  the  property 
is  not  made  productive,  and  a  portion  ispurmitted  to  go  to  entirely  to 
waste,  and  the  weight  of  evidence  is  that  it  is  in  danger  of  destruc- 
tion. 

Under  this  state  of  facts  the  court  cannot  be  satisfied  that  its  duty 
is  performed  without  theappointmet  of  a  receiver. 

Order  accordingly. 


420  CASES  IN  CHANCERY. 


|3r(i  Circuit.  HaWLEY  VS.    ShELDON,    ET.  AL. 

^^^^'''^^^  It  is  a  general  rule  thai  llie  C'ourl  of  Chancery  will  not  decree  a  specific  performance    when 
Havvlev.  ,    .    ,         ■  .     .., 

vs.  the  remedy  is  not  inulual  or  one  party  only  is  bound  by  the  agreement. 

The  court  having  obtained  possession  of  the  case  will  retain  it  for  the  purpose  of  adjusting  the 
accounts  between  the  parties,  though  the  relief  sought  (  a  specific  performance )  cannot  be 
granted. 

The  bill  in  this  case  was  for  the  specific  performance  of  a  contract, 
and  for  the  settlement  of  an  account  between  the  parties  ;  and  the 
prayer  was  that  the  balance  found  due  might  be  applied  on  the  con- 
tract.     The  facts,  as  appears  by  the  bill,  answers  and  proofs,  are  thai 
the  defendant  Sheldon,  in  May,  1834,  proposed  to  the  complainant  to 
remove  trom  Dearbornville,  Wayne  county,  Michigan,  to  Kalamazoo, 
to  keep  the  public  house,  and  as  an  inducement,  offered  to  sell  one- 
half  of  the  public  house  or  tavern  and  lands  attached  to  it  with  the 
appurtenances  to   the  complainant  for  $4,000,  or  the  whole  at  the 
same  rate.     This  was  in  1835.     The  proposition  was  in  writing,  but 
no  answer  e.xcept  a  verbal  one  seems  to  have  been  given,  though  the 
complainant  intended  to  have  accepted  and  taken  one-half  of  the 
premises,  and  did  remove  to  Kalamazoo,  and  entered  into  possession 
of  the  whole  premises.     Considerable  improvements  had  been  made 
to  the  tavern-house  and  out  buildings  by  the  complainant,  and  no  rent 
had  been  demanded  or  paid,  though  he  had  been  in  possession  some 
four  years.     The  defendants  were  indebted  to  complainant  in  a  large 
sum  on  account  of  board,  &c.,  which  he  insisted  was   to  apply  to- 
wards the  purchase  price  of  the  property  ;  and  they  insisted  was  to  be 
cancelled  by  the  rent  due  from  complainant.    It  does  not  appear  that 
Burdick  and  Lyon  ever  authorized  Sheldon  to  make  the  proposition 
to  sell,  or  even  knew   of  it  until  about  the  time  the  bill  was  filed. — 
There  is  no  memorandum  in  writing  except  the   proposition  to  sell 
from  Sheldon,  and  he  denies  positively  that  it  was  accepted  by  the 
complainant.     The  bill  was  filed  in  April,  1839,  and  it  appeared  the 
defendants  or  Sheldon  had  sold  his  interest  to  other  persons  prior  to 
that  time. 

A.  Pratt  &:  D.  B.  Webster,  for  complainant. 
C.  E.  Stuart  &  H.  Mower,  for  defendants. 


CASES  IN  CHANCERY.  .121 

The  Chancellor. — The  defendants  in  their  answers  severally  and  3'''' <^'^«-ui' 
positively  deny  the  existence  of  any  agreement  to  sell  the  premises  in 
question,  and  two  of  them  deny  all  knowledge  of  any  such  pretence 
until  a  short  period  before  the  filing  of  this  bill. 

There  is  in  proof  a  proposition  made  by  the  defendant,  Sheldon, 
in  the  alternative  to  sell  either  the  whole  or  the  half  of  the  premises. 
There  is  no  sufficient  proof  that  this  proposition  was  accepted  and  a 
mutual  contract  based  upon  it  obligatory    upon  all  the  parties. 

It  id  a  general  rule  that  a  court  of  equity  will  not  decree  a  specific 
performance  where  the  remedy  is  not  mutual,  or  one  party   only  is 
bound  by  the  agreement.     Parkhust  vs.  Van  Cortlant,    1  J.  C.  R. 
281.     It  is  not  proved  that  Sheldon  had  authority  to  make  the  prop- 
osition from  the  other  parties  in  interest  who  deny  all  knowledge  of 
any  such  claim  until  a  very  recent  period  and  many  years  after  the 
proposition  had  been  made.     To  test  the  right  of  complainant  to  the 
relief  he  seeks  it  is  but  necessary  to  ask  the  question,  if  from  the  show- 
ing in  the  case  it  would  have  been  in  the  power  of  the  defendants  or 
any  of  them  if  the  property  had  decreased  in  value,  to  have  coerced 
the  complainant  to  make  the  purchase.     But  the  defendant  under  this 
indefinite  proposition  has  made  valuable  improvements  upon  the  pro- 
perty with  the  knowledge  and  assent  of  the  defendants,  under  an  ar- 
rangement as  they  say,  that  the  expense  of  the  improvements  should 
be  allowed  for  in  payment  of  rent.     However  this  may  have  been, 
the  complainant  is  entitled  to  pay  for  those  improvements  whether  they 
were  made  relying  upon  the  imperfect  arrangement  with  Sheldon  or 
under  the  understanding  as  stated  by  the  defendants.   From  the  chan- 
ges in  the  title  to  the  property  and  the  singularly  indefinite    manner 
in  which  this  business  has  been   transacted,  the  remedy   of  the  com- 
plainant at  law  would  perhaps  be  difficult  and  less  plain  and  adequate 
than  in  this  court. 

Under  the  circumstances  of  the  case  1  deem  it  the  duty  of  the  court 
to  retain  the  case  and  direct  a  reference  to  ascertain  the  cost  of  the 
improvements  and  also  to  state  an  account  between  the  complainant 
and  Burdick  and  Sheldon,  the  present  owners  of  the  property,  allow- 
ing in  stating  the  account  a  fair  and  reasonable  rent  for  the  premis- 
es during  the  period  they  were  occupied  by  the  complainant.     This 


422  CASES  IN  CHANCERY. 

ardCircoii.  was  done  in  the  case  in  1  J.  C.   R.,  273,  before  referred  to,  a  case 
Hawiey.    ^^O'  analagous  to  the  present  in  all  its  important  features. 
Sheldon.        Decree  accordingly. 


CASES  IN  CHANCERY.  vrs 


.     William  E.  Sill,  1-6-.  SiDNEV  Ketchlm.  First cirtuu 

Where  uiiiorigiigc  had  hceri  as^^ij,'!)!.'!!  lo  ?S.  in  trll^il  lor  several  iiidiviiluals,  it  was  held  not  ne- 
cessary lo  iiKike  the  ccstuis  que  trust,  parties  lt>  u  bill  filed  to  foreclose  it. 

Cestuisifue  trust  are  iiol    necessary  parlies,  when  llio  only  utijeci  of  the  suit  is  lo  reduce  the 
property  Into  possession. 

The  bill  of  com[)lairit  was  filed  hy  William  E.  Sill,  trustee  for  Jon- 
athan I) wight,' Henry  Dwiglit,  Ediimnd  Dwight,  John  Ward,  and 
Benjamin  Day,  for  the  foreclo.sii  re  of  a  mortgage  made  by  the 
defendant  to  E.  P.  llasting:^,  President  of  the  Bank  of  Michigan,  in 
trust  for  said  bank  for  the  .sum  of  i$12,000.  The  bill  states  that  E.  P. 
H.,  President  and  trustee  as  aforesaid,  and  mortgagee  did  by  his  deed 
of  assignment  duly  executed,  acknowledged,  and  delivered,  under  the 
authority,  and  by  direction  of  the  Dank  of  !\Iichigan,  sell,  assign, 
transfer  and  set  over  said  Ijoud  and  mortgage,  to  the  complainant. 
The  date  or  time  of  the  assignment  is  not  given.  In  all  other  re- 
spects the  bill  is  in  the  usual  form  and  is  signed  by  the  complainant 
by  his  solicitors.     The  bill  was  not  signed  by  counsel. 

To  the  bill  a  demurrer  was  filed  by  the  defendant  and  the  follow- 
ing causes  assigned  : 

1.  The  cesluis  que  trust  Jonathan  Dwight  and  others,  are  neces- 
sary parties. 

2.  The  bill  of  complaint  is  not  signed  by  counsel, 
o.  The  bill  is  bad  for  uncertainty,  as   it  does  not   show  the  innc 

ol  liie  assignment  of  the  bond  and  mortgage  to  the  complainant. 

Joy  Osi  Portek.  for  complainant. 
T.  RoMEvx,  for  defendant. 

The  Chancellou. — The  complainant  files  his  bill  in  this  case  a*, 
trustee  for  live  cestuis  que  trust.  The  object  of  the  bill  is  to  fore- 
close a  mortgage  given  as  collateral  security  for  a  debt. 

The  principal  question  is,  whether  it  is  necessary  in  a  case  of  this 
kind,  to  make  the  ccstuis  que  trust  parties  to  this  suit. 

There  is  a  good  deal  of  confusion  in  the  authorities  upon  this  sub- 

Vol.  I.  54 


424  CASES  IN  CHANCERY. 

First  Circuit.  jgj,{_     Without  going  through  the  numerous  and  somewhat  contradic- 

jjj,,        tory  cases  cited,  I  will   refer  to   the  remarks  of  Mr.  Calvert  in  his 

Kctchiim.  treatise  on  parties,  who  has,  I   think  stated  the  result  to  be   deduced 

from  all  the  cases  very  correctly.     He  sdLys.page  210,  "  It  will  be  ob- 

"  served  that  Lord  Eldon  says  in  7nost  cases  respecting  trust  property 

"  the  cestuis  que  trust  should  be  made  parties.     This  expression  natu- 

"  rally  suggests  an  enquiry,  in  what  cases  they  are  not  to  be  made 

"  parties  :  In  the  cases  just  quoted  the  existence  or  enjoyment  of  the 

"property  is  affected  by  the  prayer  of  the  bill.     But  there  are  ca- 

♦'  ses  in  which  the  existence  of  the  property  is  not  affected^  and  the  on- 

"  ly  object  is  to  transfer  it  into  the  hands  of  the  trustees  :  these  two 

"  classes  must  not  be  confounded  together.     In  cases  of  the  former 

"  class  the  interest  of  the  cestuis  que  trust  is  immediately  affected  by 

"  the  proceedings  :     Not  so  in  cases  of  the  latter  class,  for  they  will 

"  not  lose  their  lien  upon  the  property  whether  the  trustee  does  or  does 

"  not  reduce  it  into  possession.     The  duty  of  the  trustee  is  to  reduce 

"it  into  possession,  that  he  may  hare  the  complete  execution  of  the 

"  trust  within  his  own  power,  a  duty  which  he  must  perform  and  in 

•'  which  the  cestui  que  trust,  although  he  may  compel  his  trustee  to 

♦'  undertake  it,  ought  not  to  bear  any  part :     It  seems  that  where  the 

*■'- prayer  of  the  hill  is  confined  to  this  object,  the  cestui  que  trust  ought 

"  not  to  be  made  a  party.  " 

What  is  meant  by  the  language   here  used?     The   reason  given 

for  the  rule  that  the  cestuis  que  trust  should  be  made  parties,  is,  that 
the  court  may  be  enabled  to  do  complete  justice  by  deciding  upon  and 
settling  all  the  rights  of  all  persons  interested  and  preventing  further 
litigation. 

Where  the  object  of  the  bill  is  to  settle  an  account  of  trust  prop- 
erty it  is  undoubtedly  necessary  that  all  the  cestuis  que  trust  or  in  oth- 
er words  all  persons  interested  in  the  event  of  the  suit,  should  be  be- 
fore the  court.  This  was  the  case  in  Hosmer  vs.  Stevens,  1  Ver., 
110,  which  has  been  referred  to  in  several  of  the  subsequent  cases. 

What  is  the  object  of  the  present  bill  ?  It  is  merely  to  get  in  the 
money  due  upon  the  mortgage  in  part  execution  of  the  trust.  The 
rights  of  the  cestuis  que  trust  are  not  brought  in  question  in  this  pro- 
ceeding. There  are  no  rights  of  these  persons  put  in  issue.  The 
trustee  assignee  of  this  mortgage  takes  no  more  than  is  actually  due 


CASES  IN  CHANCERY.  425 

upon  it     Under  the  case  made  by  the  bill  he  does  take  all  that  is  due.  F'irsi circuit. 
This  litigation  cannot  be  aided  o.''  varied  so  far  as  I  can  perceive  by       j. ., 
making  the  cestuis  que  trust  parties.     The  decision  would  be  the  same  Kctdmi 
upon  the  validity  or  the  amount  due  upon  the  mortgage  in  either  case. 
The  right  of  the  persons  for  whom  this  trustee  acts  cannot  be  atlec- 
ted  by  the  collection  of  this  money  ;  their  right  to  the  proceeds  in 
the  hands  of  the  trustee  remains.     From  all  reasoning  in  the  cases 
cited,  I  am  satisfied  this  comes  within  the    reason  of  the  exception 
to  the  rule,  although  no  parallel  case  has  been  found;   and  unless  Uie 
court  is  restrained  by  the  authority  of  adjudged  cases,  every  consid- 
eration of  reason  and  convenience  is  in  favor  of  this  practice.     In- 
deed this  seems  to  me  but  the  duty  of  the  trustee  as  the  first  step  in 
the  execution  of  his  trust.     If  any  question  as  to  the  right  of  any  or 
all  of  the  cestuis  que  trust  to  the  proceeds  should  arise,  then  of  course 
they  must  all  be  made  parties. 

As  to  the  allegation  of  the  assignment  it  shows  a  sufficient  title  to 
enable  the  complainant  to  sue,  and  is  sufficient  upon  demurrer.  The 
other  cause  of  demurrer,  that  the  bill  is  not  signed  by  counsel,  is 
technically  correct,  but  as  it  is  a  mere  slip  the  bill  may  be  amended 
in  this  particular  without  costs  to  either  party. 

Demurrer  overruled. 


426  r.ASES  TN  CHANCERY. 


Firsttircuii.  AjrBROSE  G.  Smith  VS.  The  Saoinaw  City  Bank. 

SmUli.       Tlie  gpuoral  rule  is,  Uiat  wlion  tlif  answer  sliows  a  defence  anil  llierc  is  an  excuse  shown  for 

iginaw  ( 'i 
i'liv  Bank. 


'iai'inaw  CI-     *'*^  'lelay,  l''e  courl  will  allow  tlie  answer  lo  lie  tiled  on  terms. 


Tlie  iiiclinalioii  of  the  conn  is  always  lo  permit  an  answer  to  he  filed  if  it  discloses    a  defence, 
unless  lliere  lias  been  intentional  delay - 

This  was  an  application  to  set  aside  a  decree  pro  confesso,  and 
lof  leave  to  file  an  answer.  It  was  based  upon  affidavits  excusing  the 
delay,  and  the  answer  proposed  to  be  filed  if  the  decree  was  set  aside. 

A.  D.  Frazer,  in  support  of  the  motion. 

The  Chancellor. — The  general  rule  is.  that  where  the  answer 
shows  a  defence,  and  there  is  some  excuse  shown  for  the  delay,  the 
court  will  permit  the  answer  to  be  filed  on  terms.  If  the  answer 
discloses  a  defence,  the  inclination  of  the  court  has  always  been  to 
permit  it  to  be  filed,  unless  the  court  shall  believe  that  there  has  been 
a  delay  intended  to  retard  the  proceedings  in  the  cause.  I  do  not  be- 
lieve that  such  has  been  the  case  here. 

Some  attention  is  due  to  the  character  of  the  liability.  Persons 
have  been  drawn  into  these  institutions  without  any  knowledge  ol 
the  extent  of  their  liability.  This  cannot  shield  them  whenever 
their  liabilities  are  fixed,  but  it  may  properly  be  considered,  upon  an 
application  to  be  permitted  to  make  whatever  defence  they  may 
have. 

The  court  cannot  now  undertake  to  define  or  to  foresee  the  extent, 
or  the  limit  of  tlie  liability  of  tlie  stockholders  in  these  institutions 
where  so  many  may  prove  insolvent.  It  is  im|)0ssible  to  tell  where 
or  to  what  extent  the  blow  may  fall. 

In  view  of  this  and  of  the  uniform  practice  of  this  court,  I  do 
not  feel  myself  at  liberty  to  refuse  this  application  or  to  impose  upon 
the  counsel  the  obligation  to  stipulate  as  to  the  rights  of  their  client, 
as  asked  for  by  the  complainants. 

The  terms  should  be  to  pay  the  costs  of  the  default  and  all  subse- 
quent costs  as  a  conditon,  and  also  to  receive  a  replication,  and  rule 
for  taking  proofs  upon  filing  the  answer,  if  the  complainant  shall  so 

elect. 

Order  accordingly. 


CASES  IN  CITANCERV.  427 


Samuel  Street  vs.   Lean'der  S.  Dow  &  William  S.  P.ort.         SrdCircuii.. 

•  "ourts  of  Kquity  recognize  anil  pioiect  the  rights  of  assig^neea  and  enforc'c  llic  perforiiianrc  of      Sircoi. 

contructs  in  their  favor.  ,,      Y'v. 

I)ow&  Bor( 

II  is  a  general  rule  thai  a  contract  cannot  rest  partly  in  '.vriiing  and  parlly  in  parol.  Wlion  a 
contract  is  reduci-d  to  writing  all  previons  parol  rontracls  rclali.ig  lo  tlic  sanie  iiialter  are  mer- 
ged in  llic  wrillcii  conlracl. 

A  parly  seeking  to  set  aside  a  conveyance  on  the  gronnd  of  fraud  must  be  prompt  in  commu- 
nicating it,  and  consistent  in  his   notice  as  to  the  use  he  intends  to  make  of  ii. 

Bill  for  specific  performance  of  a  contract. 

The  facts,  as  apj)ears  by  bill  and  answer,  were,  that  Leander  S. 
Dow  and  William  Bort  gave  their  IjoiuI  to  one  Georgo  Harlan  in  the 
sum  of  $3,000,  conditioned  for  the  conveyance  to  Ilarlan  or  his  as- 
signs, within  twenty-four  hours  after  demand,  of  the  S.  E.  quarter  of 
sec.  6,  town  8  S.  range  17  west,  in  the  State  of  Michigan,  at  any 
time  within  one  year  from  date,  provided  Harlan  or  his  assigns  should 
previously  pay  the  sum  of '"SJ^OO  in  such  money  as  would  be  received  at 
the  Land  Office  for  the  land  in  question,  Dow  holding  the  posse.^ision  of 
the  premises  under  the  preemption  laws.  Harlan  assigned  the  bond  to 
the  complainant.  The  defendant  Dow  left  the  State  so  the  money 
could  not  be  paid  or  tendered  him.  The  complainant  offered  it  lo 
Bort  who  refused  it  and  finally  paid  it  into  the  Land  Office  and  ob- 
tained a  Land  Office  receipt  for  the  same  in  payment  for  the  land, 
as  described  in  the  bond.  Notice  was  gi\  en  of  the  payment  of  the 
money  by  complainant  to  Bort,  and  a  deed  demanded  before  the  ex- 
piration of  the  time  limited  in  the  bond.  At  the  time  the  defendants 
executed  the  bond  Harlan  gave  four  notes  of  ^.50  each  to  defendants, 
which  were  to  be  endorsed  by  the  complainant,  and  they  were  recei- 
ved conditionally,  and  Harlan  was  to  procure  the  endorsement ;  tho' 
no  mention  of  this  was  made  in  the  bond.  This  was  never  done  ex- 
cept as  to  one  of  tlio  notes.  The  others  were  retained  by  the  defen- 
dants and  put  in  circulation  ;  no  offer  to  return  them  to  Harlan,  or 
Street,  ever  having  been  made  by  the  defendants. 

Green  &  Dana  for  complainant. 

J.  S.  Chipman  for  defendants. 


428  CASES  IN  CHANCERY. 

3ni  circHii.  'f  ^E  CHANCELLOR. — The  Complainant  must  bo  regarded  as  standing 
<ireci  '^^  ^'^®  same  situation  as  the  original  obligee  of  the  bond  would  have  oc- 
Dow.  cupied  if  the  bond  had  not  been  assigned.  Courts  of  Chancery  rec- 
ognize and  protect  the  rights  of  assignees.  The  condition  of  the  bond 
is  plain  and  clear.  On  the  one  side  the  obligee  of  the  bond,  Harlan 
was  to  furnish  to  the  said  Dow  two  hundred  dollars  in  money  receiv- 
able at  the  Land  Office,  and  Dow  was  at  anytime  when  required,  up- 
on a  notice  of  twenty-four  hours,  to  convey  the  lands  mentioned  in 
the  bond  by  a  good  and  sufficient  deed.  Dow  being  absent  from  the 
state  under  circumstances  which  led  the  complainant  to  apprehend  that 
he  intended  to  evade  the  fulfilment  of  the  conditions  of  the  bond  the 
complainant  actually  paid  and  applied  the  two  hundred  dollars  to  the 
purpose  particularly  designated  in  the  bond  to  which  it  was  to  be  ap- 
plied. This  seems  to  me  a  substantial  compliance  with  the  condition 
of  the  bond. 

The  money  has  been  applied  according  to  the  conditions  of  the  bond 
itself;  so  far  therefore  as  this  question  rests  upon  the  bond,  the  con- 
dition has  been  performed  on  the  part  of  the  obligee,  and  he  is  enti- 
tled to  the  land  in  question. 

It  is  a  general  rule,  that  a  contract  cannot  rest  partly  in  writing 

and  partly  in  parol,  but  where  a  contract  is  reduced  to  writing,  all 
previous  parol  contracts  relating  to  the  same  matter  are  merged  in 
the  written  contract. 

It  is  attempted  to  be  shown  in  this  case  that  the  defendant,  Dow, 
was  induced  to  deliver  this  bond  upon  a  promise  that  the  four  notes 
executed  by  Harlan  should  be  endorsed  by  Street,  which  was 
not  done  except  as  to  one.  If  the  defendant  had  at  the  time  and  be- 
fore he  had  put  the  notes  in  circulation,  insisted  at  once  upon  retur- 
ning the  notes  and  receding  from  the  contract  upon  this  promise  unless 
they  were  endorsed  he  would  have  been  authorized  to  have  done   so. 

But  having  actually  used  and  put  these  notes  in  circulation  and  per- 
mitting the  bond  to  stand,  Jie  must  be  considered  as  having  waived 
this  right.  He  cannot  affirm  and  satisfy  the  contract  by  using  the 
notes  received,  and  at  the  same  time  disaffirm  it.  He  must  adopt  one 
course  or  the  other. 

A  party  seeking  to  set  aside  a  conveyance  on  the  ground  of  fraud 


CASES  IN  CHANCERY.  429 

must  be  prompt  in  communicating  it  and  consistent  in  his  notice  ^s^_J|!l^ 
to  the  use  ho  intends  to  make  of  it.      'i  Pet.  R.  215.  sircei. 

vs. 

There  must  be  a  decree  for  a  conveyance  according  to  the  condi-      '^""■• 
lions  of  the  bond. 
Decree  accordingly. 


430  CASES  IN  CHANCERY. 


First  Circuit.  Thayer  VS.  JasoxN  SwiFT,  and  Others. 

Tlmyer.      TJiis  court    will    not  entertain  a  judgineiU  creditor's  bill  until  the  judgment  creditor  has  fully 
-,'^%  exhausted  liis  retncdy  at  law.  Itis  this  fact  that  gives  the  court  jurisdiction  hi  this  class  of  ca- 

ses ;  and  it  has  been  repeatedly  held  that  the  court  will  not  sustain  a  bill  as  a  judgment  cre- 
ditor's bill  merely  filed  before  the  return  day  of  e.xecution,  and  it  is  not  sufficient  that  tlie  exe- 
cution shall  have  Been  actually  returned  before  the  return  day. 

(;ourts  of  chancery  have  hcUl  in  every  adjudged  case's  that  the  judgment  creditor  must 
show  a  strict  and  rigid  eoiniiliance  with  Uie  ruleslandfornisof  law,beforeit  will  administer  the 
Jiarsh  remedy  of  depriving  the  debtor  absolutely  of  all  control  ovej  every  pan  and  portion 
of  his  property. 

Where  a  lien  has  been  acquired  by  the  levy  of  an  execution,  or  wlieie  there  is  an  out-stand- 
ing execution  in  tlie  hands  of  an  officer,  and  a  fraudulent  obstruction  has  been  interposed  to 
prevent  its  being  levied,  there  can  be  no  doubt  that  a  bill  may  be  filed  in  this  court  for  a  dis- 
covery and  to  remove  such  obstruction. 

Tlie  ground,  and  only  ground  upon  which  injunctions  arc  granted  against  third  persons 
in  possession  of  personal  property  and  ostensibly  its  rightful  owners,  upon  an  exparte  appli- 
cation, is  for  the  protection  of  the  fund  or  iiroperty  when  sliown  to  be  in  danger  without  this 
interposition. 

It  makes  no  difference  whether  goods  arc  converted  into  money  or  not,  trustees  are  equal- 
ly responsible  to  creditors  whose  rights  to  the  goods  or  their  proceeds  are  eslablislied ,  and  if 
the  proceeds  be  paid  away  by  the  trustees  pendente  lite,  they  are  held  responsible  ;  and 
where  there  is  no  allegation  that  the  trustees  are  insolvent,  transient  or  irresponsible,  or  that 
ibe  fund  is  in  a  hazardous  condition,  an  injunction  will  not  be  granted  or  sustained. 

The  complainants  obtainet^  a  judgment  against  the  defendant  Swilt 
in  the  Circuit  Court  for  the  county  of  Washtenaw,  on  the  13th  De- 
cember, 1839,  for  $680,44  damages,  and  $43,72,  costs  of  suit.  On 
the  31st  of  December,  1839  a  jifa  was  issued,  directed  to  the  Sheriti" 
of  Washtenaw  county,  where  Swift  resides,  against  the  goods  and 
chattels,  lands  and  tenements  of  Swift,  and  delivered  to  J.  K.  Wal 
lace,  Deputy  Sheriff,  on  the  first  day  of  January,  1840.  The  execu- 
tion was  returnable  on  the  first  Tuesday  of  May,  1840.  On  the 
20th  April  1840,  the  Sheriff  by  his  deputy  returned  on  said  writ, 
*'  that  there  was  no  goods,  and  chattels,  lands,  and  tenements  to  be 
found  in  his  bailiwick  to  secure  or  pay  the  sum  due  the  complainant 
or  any  part  thereof,  to  his  knowledge,  after  diligent  search.  " 
The  judgment  remains  in  full  force,  and  wholly  unsatisfied. 

The  bill  states  that  the  defendant  Swift  has  a  considerable  amount 
of  property,  real  and  personal,  which  he  keeps  concealed,  and   par- 


CASES  IN  CHANCERY.  431 

ticularly  that  he  deeded  to   the  defendant  j^anister,  a  lot  in  the  vil-  -"•'  ^-''fcuit. 

lage  of  Dexter,  without   consideration,  for  the  purpose  of  keeping    'j|,.,jcr. 

the  same  out  of  the  way  of  his  creditors.     That  since  making  the      swm. 

deed.  Swift  has  remained   in  possession,  and   has  erected  thereon  a 

brick  house  and  paid  for  the  same  out   of  his  own  means,  though  the 

whole  business  has  been  carried  on   in  the  name  of  Banister.     The 

improvements  are  supposed  to  be  worth  from  $1500  to  $2000.     The 

bill  alleges  certain  other  property  has  been    j)urchased   by  Swift  in 

the  name  of  Banister,  for  the  purpose  of  defrauding  his  creditors. — 

The  complainants  charge  that   all  the  property  described,  as  in  the 

name  of  Banister,  is  held  in  trust  by  him  for  Swift,  and  that   he  has 

also  a  large  amount  of  notes,  accounts,  &c.  belonging  to  Swift,  which 

he  is  collecting  for  Swifts  benefit.     The  prayer  is  in  the  usual  form 

of  a  judgment  creditors  bill. 

Motion  for  Receiver  by  complainants. 

Motion  for  dissolution  of  injunction  by  defendants. 

Miles  &  Willson,   for  defendants. 

The  Chancellor. — The  various  questions  presented  under  this 
motion  involve  principles  of  the  most  important  and  complicated  cha- 
racter. 

The  consequences  flowing  from  their  decision  either  tiie  one  way 
or  the  other,  are  of  great  importance.  It  is  to  be  regretted  that  this 
question  is  presented  under  circumstances  which  preclude  that  care- 
ful examination  of  authorities,  and  that  deliberate  reflection  which 
the  subject  demands. 

Under  these  circumstances,  1  shall  confine  myself  tothe  considera- 
tion of  such  portions  of  this  case,  as  may  be  required  by  the  present 
exigency. 

The  first  question  presented  is.  can  this  bill  he  sustained  as  a  judg- 
ment creditors  bill  merely.  The  foundation  of  the  jurisdiction  ot 
this  court  in  this  class  of  cases  is,  that  the  judgment  creditor  shall  have 
fully  exhausted  his  remedy  at  law.  It  has  been  repeatedly  held  that 
the  court  will  not  retain  a  bill  as  a  judgment  creditors  bill  merely, 
filed  before  the  return  day  of  the  execution.  In  the  absence  of  any 
authority  or  dicta  upon  the  subject,  I  should  have  as  little  doubt 
upon  a  case  where  the  execution  was  actually  returned  before  the  re- 
VoL.  I.  55 


432  C^SES  IN  CHANCERY. 

2n(i  cireui;.  turii  day,  although  the  bill  was  not  filed  until  after  the  return  day  had 
^y^'^^''^  elapsed.     Courts  of  Chancery  have  held  the  judgment  creditor  in  ev 
Swift       ^''y  ^^j^^'dged  case,  before  administering  this  harsh  remedy  of  depri- 
ving the  debtor  absolutely  of  all  control  over  every  part  and  portion 
of  his  property,  to  bring  himself  strictly  and  rigidly  within  this  rule. 
No  case  can  be  found  where  this  remedy  has  been  afforded  without 
a  strict  compliance  with  all    the  forms.     What  is  the  reason  of  the 
rule  1     It  is  that  a  judgment  debtor  shall  not  be  harrassed  with  a  suit 
in  Chancery  until  the  creditor  has  availed  himself  of  all  his  common 
law  rights  to  collect  his  judgment.     Theonly  (ficia  to  be  found  which 
has  ever   led  to  any  doubt  upon    this  subject   is  to  be    found  in  the 
opinion  of  Chancellor  Walworth  in  the  case  of  Cassidyws.  Meacham 
3  Paige  212.     This  idea  is  thrown  out  under  a  perhaps,  and   rather 
•         as  a  speculation  than  as  a  decision.     He  says  perhaps  a  return  made 
before  the  return  day,  may  be  good  by  relation.     But  if  we  once  depart 
from  the  well  settled  rule,  that  the   creditor  shall   fairly   and  fully 
first  exhaust  his  remedy  at  law,  where  shall  we  stop  ? 

Will  it  answer  that  the  execution  may  be  issued,  delivered  to  an  of- 
ficer, and  immediately  returned,  and  slumber  in  the  files  of  the  court 
until  after  the  return  day  has  passed,  and  then  become  good  by  rela- 
tion, notwithstanding  the  debtor  may  have  been  in  possession  of  pro- 
perty on  which  to  levy  the  execution.  There  is  no  other  safe  course 
to  adopt  in  administering  this  severe  remedy,  but  to  adhere  to  the  well 
established  principles  which  govern  this  class  of  cases;  and  I  think 
the  rule  is  too  well  established  to  be  overturned,  by  a  speculative  ex- 
pression of  this  kind,  which  formed  no  part  of  the  decision,  and  was 
unnecessary  in  the  case.  The  fact  that  a  suit  of  this  kind  has  never 
been  sustained  as  far  as  we  can  find,  is  not  without  its  importance. 
1  place  some  reliance  on  the  manuscript  case  cited  from  New  York. 
I  have  very  little  doubt  it  is  correctly  reported,  and  entirely  concur 
in  the  reasoning.  This  is  the  first  time  I  have  been  called  upon  to 
decide  this  question.  Its  decision  is  now  unavoidable,  and  as  it  is  now 
decided,  must  be  the  rule  in  future  cases  upon  this  subject.  I  enter- 
tain no  doubt  as  to  what  should  be  the  rule. 

The  next  question  whether  under  the  allegations  contained  in  this 
bill,  the  complainant  can  call  upon  the  other  defendants   the  alleged 

trustees  of  the  judgment  debtor,  is  of  a  much  more  grave  and  impor- 
tant character. 


CASES  IN  CHANCERY.  433 


2n(l  Circuit. 


If  a  levy  had  been  made,  and  an  actual  lien  thus  been  acquired, 
there  could  be  no  doubt.  Timycr. 

If  there  was  an  outstanding  execution  in  the  hands  of  the  officer,  swiii. 
and  the  bill  had  been  filed  for  a  discovery  and  to  remove  fraudulent 
obstructions  interposed  to  prevent  its  being  levied,  there  could,  on  gen- 
eral principles  exist  but  little  difficulty.  Here  it  is  not  avered  tliat 
there  has  been  any  attempt  to  levy  this  execution  upon  this  property, 
and  there  is  no  outstanding  execution  in  aid  of  which  the  extraordi- 
nary powers  of  this  court  are  invoked.  I  am  inclined  to  think  how- 
ever,  and  to  hold  for  the  purpose  of  this  motion,  that  the  com- 
plainant, under  the  showing  contained  in  his  bill  may  sustain  it  for 
the  purpose  of  making  this  trust  property  available,  if  it  really  has 
any  existence,  for  the  liquidation  of  his  judgment. 

It  is  however  urged  that  the  injunction  granted  in  this  case  against 
the  assignees,  is  neither  required  nor  justified  by  the  allegations  con- 
tained in  the  bill.  The  ground  and  only  ground,  upon  which  injunc- 
tions against  third  persons  in  possession  of  personal  property  and  os- 
tensibly its  rightful  owners  upon  an  exparte  application,  are  gran- 
ted, is  for  the  protection  of  the  fund  or  the  property,  when  it  is  shown 
to  be  in  danger  without  this  interposition. 

Here  there  is  no  allegation  that  these  trustees  are  insolvent,  trans- 
ient, or  irresponsible.  It  was  held  in  the  case  of  Haddoii  vs.  Sfader 
20  John.  R.  570,  that  it  makes  no  difierence  whether  the  goods 
are  converted  into  money  or  not ;  the  trustees  arc  equally  responsi- 
ble to  the  creditor  if  he  establishes  his  right  to  the  goods  or  their  pro- 
ceeds, and  if  paid  away  by  the  trustees  jxendente  lite,  they  are  held 
personally  responsible.  Under  these  circumstances,  it  should  cer- 
tainly be  required  in  order  to  sustain  an  injunction  which  may  ope- 
rate with  such  extreme  severity,  that  it  should  be  shown,  that  the  fund 
is  in  a  hazardous  condition.  Such  has  been  the  usual  practice  of  the 
court.  But  as  certain  real  estate,  the  title  to  which  is  not  vested  in 
these  trustees,  is  alleged  to  belong  to  this  judgment  debtor  ;  and  any 
transfer  or  incumbrances  upon  that,  may  lead  to  the  necessity  of  ma- 
king new  parties,  the  injunction  in  that  respect  may  stand  until  the 
coming  in  of  the  answer.  It  results  then  that  the  bill  cannot  be  sus- 
t  ained  as  a  judgment-creditors  bill  merely. 


434  CASES  IN  CHANCERY 

2ml  Cireuil. 


^^_^      That  the  general  injunction  against  Swift  must  be  dissolved.     That 
Tiiayer.    ^^8  injunction  against  the  other  defendants  be  dissolved,  except  so  far 

wih.     fis  relates  to  the  real  estate  alleged  to  be  the  property  of  the  defen 

dant  Swift. 

That  the  motion   for  the  appointment  of  a  Receiver  as   against 

Swift,  must  be  denied,  and  as  the  other  defendants'  in  opposition  to 

the  motion  for  a  Receiver,  deny  absolutely    having  or  holding  any 

property,  rights,  credits  or  effects,  of  Swift  of  any   kind,  a  receiver 

of  the  alleged  trust  property  cannot   be  granted  until   they  have  an 

opportunity  of  answering  the  bi'l. 


CASES  IN  CHANCERY.  435 


Spencer  Stafford,   vs.  T.  J.  IIclbert.  Firsicircui 

Wlierc  an  execution  was  returned  liy  ilie  ofTicer  more  tlian    a  month  before  the  return  day       yuitlord 

and  a  judgment  creditor's  bill  filed  after  the  return   dav,  the  injunction  was  dissolved.  r*. 

Hulberi. 

A  bill  filed  after  the  return  day  for  want  of  equity  in  the  bill. 

This  was  a  motion  to  dissolve  injunction  for  want  of  equity  in  the 
bill. 

The  facts  will  appear  sufficiently  in  the  opinion  of  the  Court. 

The  Chancellor — This  is  a  creditor's  bill  merely.  It  appears 
from  the  bill  that  the  e.xecution  was  returned  by  the  sheriff  more  than 
a  mouth  before  the  return  day,  but  that  the  bill  was  not  filed  until  af- 
ter the  return  day  had  passed. 

Several  other  questions  were  raised  upon  this  motion,  but  since  from 
the  views  taken  in  the  case  of  Thcnjer  vs.  Su-iff,  and  others, 
decided  in  the  second  circuit,  this  must  be  decisive  of  the  case; 
it  will  not  be  necessary  to  notice  them  all.  The  practice  of  the  court 
and  the  reason  of  it,  are  set  forth  in  that  case  at  length,  and  I  adhere 
to  the  opinions  therein  expressed. 

It  may  be  proper  to  say  since  that  case  was  decided,  I  have  seen  an 
extract  from  the  record  in  the  case  of  i'crgM507i  vs.  Neicstead,  el.  ah, 
referred  to,  from  which  it  appears  that  the  newspaper  report  is  cor- 
rect and  that  the  case  turned  upon  the  question  here  presented,  and 
that  the  demurrer  was  allowed. 

A  question  was  raised  as  to  the  reception  of  the  affidavit  stating 
that  the  return  of  the  officer  upon  the  execution  was  limited  only  to 
goods  and  chattels,  and  that  it  does  not  appear  but  that  the  defendant 
was  possessed  of  lands  and  tenements  out  of  which  the  money  could 
have  been  made. 

From  the  view  taken  upon  the  first  point  it  is  not  necessary  to  de- 
cide this  question. 

Where  the  affidavit  shows  a  distinct  fact,  and  that  the  well  settled 
practice  of  the  court  has  been  departed  from,  I  am  induced  to  be- 
lieve that  the  affidavit  may  be  received. 

JMotion  granted. 


436  CASES  IN  CHANCERY. 


Charles  W.  Whipple  vs.  Cullen  Brown,  et  al. 

irs     ifL     .  ^^^^  f  g(yf  „  of  j^  Master  charged  with  the  execution  of  an  order  of  Court  showing  the  failure  of 

a  nerson  to  appear  and  submit  to  an  examination, as  required  by  the  order  is  sufficient  founda- 
AVliipple  1  ri  .  ^ 

vt.  tion  for  a  rule  to  show  cause  why  an  attachment  should  not  issue  for  contempt. 


Brown. 


The  return  on  tiie  summons  or  the  affidavit  of  service  should  show  when  and  how  it  was  served. 
When  a  notice  was  to  appear  before  V.,  a  master,  and  the  return  was  by  D.,  a  master,  that  the 
defendant  did  not  appear— Held  to  be  irregular. 

This  was  a  rule  for  the  defendant  Brown  to  show  cause  why  an 
attachment  should  not  issue  for  contempt  in  not  obeying  a  master's 
summons  to  appear  at  the  master's  office  and  submit  to  an  examina- 
tion as  to  the  rights  and  credits  of  the  defendants,  under  a  creditor's 
bill.  The  summons  was  issued  on  the  twenty-second,  served  on  the 
twenty-third,  at  half  past  two  o'clock,  P.  M.,  and  required  the  de- 
fendant to  appear  at  the  office  of  the  master  on  the  twenty-fourth,  at 
ten  o'clock ,  A.  M.  The  summons  was  to  appear  before  Jeremiah 
VanRensselaer,  Esq.,  a  master  of  this  court,  while  the  report  of  the 
master  is  made  by  W.  \V.  Dalton,  Esq.,  who  had  the  execution  of 
the  order,  to  examine  the  defendants  and  appoint  a  receiver. 

A.  Davidson,  for  the  Complainant. 

D.  Stuart,  for  the  Defendants. 

The  Chancellor. — The  return  of  a  master,  charged  with  the  exe- 
cution of  an  order  of  this  court  is  a  sufficient  foundation  for  a  rule 
to  show  cause,  that  rule  havicg  been  taken  exparte,it  is  competent  now 
for  the  respondent  to  show  cause  against  granting  the  attachment. 

The  defendant  swears  positively  that  the  notice  to  appear  before 
the  master  was  served  only  some  eighteen  hours  before  the  time  he 
was  required  to  appear,  and  he  specifies  the  time  of  service,  and  when 
he  was  required  to  appear.  The  master  in  his  return  refers  to  the 
affidavit  of  Mr.  Holbrook,  as  to  the  mode  of  service. 

On  looking  at  this  affidavit  of  service,  it  is  perceived  that  he  does 
not  specify  when  or  how  it  was  served,  but  that  it  was  the  usual  time 
pursuant  to  the  seventy-second  rule.  It  shows  his  conclusion  ;  the 
facts  should  be  stated  in  order  to  enable  the  court  to  judge. 


CASES  IN  CHANCERY.  437 

It  strikes  mc  that  a  copy  of  tlie  notice  should  liave  been    returned  First  Circuit, 
with  the  proof  of  service  endorsed,     Brown  also  swears  that  nooth-    „., 

r  '  A\  lii|iplc. 

or  notice  has  been  served  upon  him  in  the  cause,  except  tlie  summons     j{r"vn. 
of  the  master,  for  the  purpose  of  appointing  a  receiver,  whicli   was 
obeyed. 

This  proceeding  I  think  has  been  irregular,  and  the  court  is  bound 
under  this  proceeding  to  notice  it. 

The  notice  and  return  under  tiie  rule  to  show  cause,  is  also  irregu- 
lar. The  notice  to  Brown  under  this  rule  is  to  appear  before  the 
master,  in  four  days,  &c.  The  notice  as  returned,  endorsed  upon 
the  order  is,  that  Jeremiah  VanRenselaer  jr.,  a  master  of  this  court, 
had  the  execution  of  the  order  referred  to. 

The  return  upon  the  order  is  made  by  Mr.  Dalton,  that  the  respon- 
dent did  not  appear  before  lam,  pursuant  to  the  order.  The  notice 
did  not  require  the  respondent  to  appear  before  him,  but  before  Mr. 
Van  Rensselaer,  and  non  constat,  but  that  he  has  appeared  according 
to  notice. 

While  on  the  one  hand  there  is  no  escape  from  tlie  proceedings 
under  this  class  of  bills,  when  the  proceedings  are  regular,  on  the 
other,  such  is  the  severity  of  its  operation,  it  would  be  hazardous  to 
the  rights  of  the  parties  defendant,  if  the  courts  were  to  relax  the 
strictness  of  the  proceedings,  and  attach  a  party  when  in  fact  as  ap- 
pears here,  the  notice  has  been  clearly  irregular. 

Motion  denied. 


438  CASES  IN  CHANCERY. 


Hammond  et.  al.  vs.   Place,  et.  al. 

It  is  not  a  matter  of  course  lo  allow  the  filing  of  an  ainendcd   bill  after  replication  and  test! 
niony.  A  special  application  should  be  made  lo  the  Court;  with  a  full  statement  of  the  facts 
^'^■s!'  "  "       intended  to  be  incorporated  in  the  amended  hill,  so  the  Court  can  judge  of  their  materiality. 

Place. 

Facts  which  have  transpired  subsequent  to  the  tiling  of  the  bill  cannot  be  set  forth  by  way  of 

amendment. 
A  rule  entered  by  consent  without  fraud  or  misrepresentation  will  not  be  vacated. 

To  the  answers,  replications  had  been  filed,  and  testimoy  taken  ;  at 
the  last  term  of  the  court,  the  parties  by  their  solicitors  entered 
by  consent,  a  rule  granting  leave  to  the  complainants  to  file  an  amen- 
ded bill  of  complaint.  A  motion  was  now  made  to  set  aside  and  va- 
cate the  order  or  rule  for  leave  to  file  an  amended  bill. 

J.  KiNGSLEY,  in  support  of  the  motion. 

O.  Hawkins,  contra. 

The  Chancellor. — The  filing  of  an  amended  bill  of  complaint 
at  this  stage  of  the  cause  is  not  a  matter  of  course.  Application 
should  be  made  to  the  court  for  that  purpose,  and  a  full  statement  of 
the  facts  intended  to  be  incorporated  as  amendments  should  be  set 
forth.  Their  materially  must  appear,  for  it  would  be  absurd  to  think 
that  a  cause  would  be  delayed  for  the  purpose  of  filing  an  amended 
bill,  that  would  not  in  the  least,  change  the  legal  effect  of  the  origin- 
al statement.  It  is  a  well  .settled  rule  also,  that  facts  which  have 
transpired  since  the  commencement  of  the  suit,  cannot  be  set 
forth  by  way  of  amendment  to  the  original  bill.  If  the  com- 
plainants wish  to  take  advantage  of  any  such  facts,  they  must  do  it 
by  a  supplemental  bill.  An  amended  bill  relates  back  to  the  time 
when  the  original  bill  was  filed,  and  it  is  considered  but  one  bill,  and 
cannot  be  separated. 

But  in  this  case,  the  rule  for  leave  to  file  an  amended  bill  was  en- 
tered in  open  court  by  consent.  The  court  will  not  interfere  to  set 
aside  a  rule  or  order  thus  entered.  It  is  a  matter  of  great  conven- 
ience for  solicitors  to  argree  to  rules,  and  if  the  court  would  vacate 
them  upon  application   of  either   party,  without  its   appearing  they 


CASES  IN  CHANCERY.  ^^c) 

were  entered  into  under  a  mistake,  or  by  fraudulent  representations.  F'fst circuit. 
Such  rules  would  tend   to   confusion   ratlier  tlian  convenience,     hi  ^-^'^^"^^ 

^-,  J-,  Hammond. 

2  Cox.  K.  156  ;  and  1  MouU.  Pr.  36,  it  i.s  laid  down  that   consent      „T'- 

Place. 

rules  will  not  bo  vacated.  • 

Motion  denied. 


Vol.1.  56 


440  CASES  IN  CHANCERY. 


Fust  Circuit,       Catharine  E.  Schwarz,  et.  al.,  vs.  Nathan  Sears,  et.  al. 

Scliwarz.    O-n  a  motion  to  dissolve  ;m  iiijnnclioii  Iicforc  answer,  the  allegations    in  llie  bill  are  lo  be  taken 

„'"'•  as  true, 

r-ears. 

The  cases  where  a  dciiosile  ot'inoney  is  dispensetl  witli   arc  where  there  is  an  uiirerlainly  as 

to  the  amount  wliicli  is  dne. 

The  bill  in  this  case  was  filed  for  the  purpose  of  setting  aside  n 
foreclosure  of  mortgage  under  the  statute  and  to  redeem  the  same. 
There  was  a  dispute  between  the  mortgagor  and  mortgagee  as  to  the 
real  amount  due  upon  the  mortgage.  An  injunction  was  granted  on 
the  filing  of  the  bill  to  resti*ain  the  defendants  from  perfecting  their 
proceedings  under  the  statute  foreclosure,  and  from  procuring  a  deed 
from  the  Sheriff.  The  case  now  came  before  the  court  on  a  motion 
to  dissolve  the  injunction  before  answer. 

A.  W.  BuEL,  in  support  of  the  motion,  contended  that  the  injunc- 
tion should  be  dissolved. 

First — Because  there  is  no  equity  in  the  bill. 
Second — If  there  be  equity  in  the  bill,  tlie  balance  due  upon  the 
mortgage  should  have  been  brought  into  court. 

A  creditor  is  not  allowed  to  make  it  a  condition  of  a  loan  that  he 
shall  receive  a  compensation  for  hi§  services  in  procuring  the  money, 
and  if  the  amount  of  such  compensation  is  included  in  the  security 
given  for  the  loan  the  court  will  on  the  debtors  paying  into  court  the 
amount  reported  to  be  due  by  a  master  after  deducting  the  sum  char- 
ged for  such  services,  grant  an  injunction  to  stay  all  proceedings  on 
the  mortgage.     Hine  vs.  Handy,  1  J.  C.  R.  6. 

Hy  the  complainants'  bill  the  court  is  in  possession  of  the  whole 
case,  and  having  the  power  to  do  equity  as  well  to  the  defendants  as 
lo  the  complainants,  will  exercise  that  power,  and  for  such  purpose 
will  refer  the  case  to  a  master  to  ascertain  the  amount  due,  and  will 
order  a  sale  of  the  premises  upon  such  terms  as  are  just  and  equita 
ble. 

A  party  seeking  equity  must  do  equity  ;  when  a  party  comes  in 
to  a  court  of  equity  for  relief  ho  will  be  compelled  to  do  equity  to 
others.     2  Com.  R.  139. 


CASES  IN  CHANCERY.  HI 

Where  a  party  seeks  equitable  relief  against  usury,  he  must  tirst  i"'"'*^"^"'*- 
bring  into  court  the  money  actually  loaned  with  legal  interest.  1  J.  C    ^^^^,._,,,,_ 
R.  350,  1  T.  R.  153,  1  Paige  Ch.  R.  429.  Seu^. 

This  case  comes  within  the  spirit  orthc^  statute  ami  iur  tiiul  ruasou 
we  contend  tiie  money  should  have  been  brought  into  court.  As 
to  the  meaning  of  the  term  "proceedings  at  law,"  see  1  Hojf.  Ch.  Fr. 
88,  89  ;  also  note  to  page  89,  referring  to  the  Ms.  case  of  Nev- 
lon  vs.  Douglass,  where  it  was  held  tliat  chancery  proceedings  come 
within  ihc  spirit  of  the  phrase  "proceedings  at  law,*'  and  proceed- 
ings in  chancery  would  not  bo  restrained  without  bringing  the  money 
into  court. 

A.  D.  Phaser,  contra. 

Under  the  motion  to  dissolve  the  injunction  in  lliis  case  two  posi- 
tions are  assumed  by  the  defendants;  Firs/,  tiiat  there  is  no  equity 
in  the  bill  ;  and  Second,  that  if  there  is,  the  complainant  should  have 
brought  the  balance  due  into  court. 

The  complainants  insist  upon  tlic  negative  of  both  these  positions  ; 
for: 

First — The  bill  sets  out  various  grounds  for  llie  equitable  interpo- 
sition of  the  court. 

Secondly — This  case  does  not  fall  within  the  rule  applicable  to 
that  class  of  cases  in  which  the  money  is  required  to  be  brought  into 
court.  That  rule  appears  to  have  reference  to  personal  actions  at 
law  in  which  judgment  has  been  obtained,  or  an  award,  and  in  cer- 
tain cases  where  the  defendant's  answer  shows  a  certain  sum  to  be 
due.  The  rule  is  discretionary  in  some  of  those  cases,  but  the  prin- 
ciple is  wholly  inapplicable  to  this  case.  Eden.  82,  83  ;  2  Ves.  i^- 
Beamcs  74 ;  1  Paige   R.  426  ;  4  Wash.  R.  178. 

The  Chancellor  : — This  is  a  motion   to  dissolve  an  injunction  ; 

First,  for  want  of  equity  in  the  bill. 

Second,  for  that  llie  complainants  have  not  brought  into  court  thr 
amount  due. 

There  is  suilicient  slated  in  tht^  bill  to  uarram  the  interference  of 
the  court,  and  as  the  case  now  stands  to  require  that  this  court  should 
afford  the  complainants  the  protection  they  ask.  The  defendants  not 
having  answered  the  allegations  of  the  bill  it  must  be  taken  to  be 
true,  for  the  purpases  of  this  motion. 


442  CASES  IN  CHANCERY. 

First  Circuit.  But  it  is  further  urged  that  the  complainants  should  be  required  to 
bring  the  amount  actually  due  into  court.  The  court  in  its  discre- 
tion may  require  as  a  condition  of  granting  the  continuance  of 
an  injunction  that  the  complainants  bring  the  amount  apparently  due 
into  court.  It  is  a  general  rule  that  when  a  party  comes  into  a  court 
of  equity  for  relief  he  must  do  equity. 

The  cases  where  the  deposite  of  money  is  dispensed  with  when  re- 
lief of  this  kind  is  sought  for  in  this  court,  are,  where  there  is  uncer- 
tainty as  to  the  amount  due,  or  doubt  whether  in  the  progress  of  the 
cause  it  may  not  turn  out  that  no  part  of  the  claim  should  be  paid ; 
such  is  not  the  case  here. 

It  is  admitted  by  the  bill  that  there  is  a  balance  due  upon  the  mort- 
gage which  they  profess  their  readiness  to  pay,  and  which  can  be  as 
well  ascertained  now  by  reference  to  a  master  to  compute  the  amount 
due  after  deducting  the  several  payments  as  at  any  other  stage  of  the 
cause. 

If  the  defendants  choose  to  submit  to  the  case  as  made  by  the  bill, 
I  can  see  no  reason  why  they  should  be  subjected  to  the  expense  of 
answering. 

The  complainants,  by  the  course  pursue||  by  the  defendants,  were 
compelled  to  come  into  this  court  to  obtain  relief,  and  as  the  case  now 
stands  I  see  no  reason  why  they  are  not  entitled  to  the  relief  they  ask. 
The  complainants  proffer  their  readiness  to  pay  the  amount  actually 
due  and  as  preliminary  to  granting  them  the  relief  they  ask,  they 
should  be  required  to  do  so. 

Let  it  be  referred  to  a  master  to  compute  the  amount  remaining 
due  after  deducting  all  payments  which  have  been  made  ;  and  it  is 
ordered  that  the  complainants  within  sixty  days  after  such  report  be- 
comes absolute,  shall  deposite  in  this  court  subject  to  the  order  of  this 
court,  the  amount  remaining  due,  with  interest  from  the  date  of  the 
report ;  and  upon  compliance  with  said  order,  the  injunction  to  stand 
until  further  order. 


CASES  IN  CHANCERY.  443 


Elijah  F.  Cook,  Samukl  Power,  Alfrkd  J(;dso\,William  Phelps,  ^^^^^1^1^ 
Warren  Mkssenger,  David  Paddock,  Isaac  Paddock,  and  El-      ^^^^^ 

KANAH  B.  COMSTOCK,   VS.   RUSSEL   M.  WhEELER:  vi. 

\Vlicclcr. 

liy  tlie  general  banking  law,  llic  directors  and  stocklioMcrs  of  hanking  iiistiiulions  associated 

under  il,  are  niadeliable  for  all  deficits  in  consequence  of  insolvency. 

If  charged  as  fraudulent  co-partucrs,  Uiey  are  equally  liable  forllic  entire  amount  oftlic  in- 

debiedness  of  the  concern. 

Where  the  object  of  the  bill  is  merely  to  collect  money,  or  re  luce  it  to  possession,  it  is  not  ne- 
cessary for  an  assignee  either  of  a  bond,  note,  or  chose  in  action  to  make  the  cestuis  que  Iru/t 
parties,  although  the  rule  is  otherwise  where  the  existence  or  enjoyment  of  trust  properly  is 
to  be  affected  by  the  prayer  of  the  bill. 

This  was  a  hearing  on  demurrer. 

The  bill  was  for  a  discovery,  and  stated  that  some  time  in  the  month 
of  January,  1841,  the  defendant  filed  his  bill  in  this  court  against  com- 
plainants and  others,  as  being  or  having  been  directors  and  stockhol- 
ders of  an  institution  established  under  the  general  banking  law,  and 
called  the  Clinton  Canal  Bank,   charging  them  with  a  fraudulent 
combination  to  injure  the  creditors  of  said  corporation  or  association, 
setting  forth  various  particulars  which  he  alleged  to  constitute  such 
fraud,  and  seeking  satisfaction  from  them  individually,  as  being  a  cre- 
ditor of  said  bank  by  reason  of  holding  its  notes  to  the  amount  of 
§2,594,  and  also  two  certificates  or  receipts  given  by  Seth  Beach,  as 
Receiver  of  said  bank,  to  R.  D.  Hill  for  notes  of  the  bank  received 
by  said  bank  of  said  Hill,  amounting  to  81,002,  which  were  transfer- 
red to  said  Wheeler  by  said  Hill.     That  an  injunction  was  issued  ac- 
cording to  the  pra)''er  of  said  bill  against  the  several  defendants  there- 
in named  ;  that  the  complainants  in  this  suit  appeared  in  said  cause 
and  filed  their  demurrer  to  the  bill  of  complaint  therein,  that  said  de- 
murrer is  overruled,  and  they  were  required  to  answer  said  bill  in 
twenty  days  after  service  of  the  order  granted  for  that  purpose,  which 
service  was  made  on  or  about  the  23d  day  of  April,  1H41.     That 
Wheeler  in  his  bill  omitted  to  state  how,  or  at  what  time  he  became 
possessed  of  the  notes  and  certificates  therein  mentioned,  or  the  con- 
sideration, if  any,  paid  for  the  same.     Charges  that  defendant  did  not 
obtain  possession  of  them  until  long  after  the  bank  stopped  payment, 


444  CASES  IN  CHANCERY. 

First  Circuit.  a,^j  {^3^  jf  ],£  j^,  ^[jg  jjonufule  owiiei',  he  obtained  them  for  much  less 
Cook  *'^^"  t'lfii'  ^^^^j  ^"^^  *'^^^  if  said  receipts  have  been  transferred  to  him 
Wheeler,  it  was  in  triist  for  said  Hill  or  some  other  person ;  and  if  any  consi- 
deration was  paid,  it  was  msrely  colorable.  That  said  bills  were 
bought  up  l)y  said  Wheeler,  or  said  Hill,  or  some  other  person,  on 
speculation  after  the  bank  had  stopped  doin^  business,  and  that  if  any 
thing  is  realized  by  said  Wheeler  under  his  said  bill,  it  is  to  be  sha- 
red between  himself  and  some  other  persons  according  to  some  stip- 
ulations entered  into  when  the  notes  and  receipts  were  obtained  by 
him.  Prays  a  discovery  from  Wheeler  to  enable  the  complainants  to 
make  their  defence  to  his  bill. 

The  defendant  demurred  specially. 

E.  C.  Seaman,  in  support  of  the  demurrer. 

1.  The  complainants  have  not  made  such  a  case  as  entitles  them 
in  a  court  of  equity  to  a  discovery,  and  that  the  discovery  sought 
would  be  immaterial,  and  could  not  avail  complainants  for  the  pur- 
pose they  intend  to  use  it  for. 

2.  So  much  of  their  bill  as  relates  to  the  consideration  paid  by  de- 
fendant, and  any  agreement  relating  to  the  bills  and  receipts  where- 
by Hill  was  to  retain  any  share  of  the  proceeds,  can  be  sustained  on- 
ly on  the  ground  of  champerty  and  maintenance,  which  would  subject 
defendant  to  a  forfeiture  which  complainants  have  not  waived. 

3.  The  matters  sought  to  be  discovered  relate  exclusively  to  defen- 
dants title,  and  cannot  affect  complainant's  liability  ;  and  the  inter- 
rogatories founded  thereon  are  indefinite,  hypothetical  and  imperti- 
nent, and  a  mere  fishing  proceeding,  enquiring  through  idle  cui'iosi- 
ty  into  what  does  not  concern  the  complainants  or  either  of  them. 

T.  RojiEYN,  contra. 

I.  In  support  of  the  cross  bill  the  complainants  therein  contend  that 
they  have  a  right  to  the  discovery  of  the  title  of  the  defendant  to  the 
demand  in  dispute. 

If  the  defendant  be  not  in  fact  the  equitable  and  beneficial  owner 
of  these  demands,  his  original  bill  must  fail  for  want  of  parties — this 
court  requiring  in  all  cases  the  parties  interested  in  the  object  of  the 
suit  to  be  before  it. 


CASES  IN  CHANCERY.  44." 

This  rule  is  especially  rigid  so  fnv  as  the  riglils  of  a  complainant  Firsi  circuii. 
are  concerned  ;  the  court  compelling  the  true  parly  to  be  before  it 
even  where  there  has  been  an  assignniont  subsequent  to  the  com- 
mencement of  Ihcsuit.  Mills  vs.  Iloag,  7  Paige  R.  21  ;  Scdgwich 
vs.  Cleaveland,  7  Paige  R.  289.  On  these  general  principles  wo 
rontenil  that  the  enquiry  as  to  the  title  of  the  defendant  is  material 
and  proper. 

We  furthci-  claim  that  this  is   the   case  under    the    Statute,  upon 
which  the  original  bill  is  founded. 

The  Statute  of  1839  [j).  94)  is  the  only  source  of  jurisdiction  and 
guide  to  procedure  in  this  case  ;  the  remedy  at  law  being  complete 
and  the  original  bill  (even  if  this  court  had  jurisdiction  independent 
of  the  statute)  being  multifarious  and  otherwise  bad. 

The  statute  in  question  gives  the  remedy  to  the  creditor  of  the  cor- 
poration.    See  Laii'S  of  18S7,  p.  30G-7  ;  Laws  of  1839,  p.  102. 

Hence  the  propriety  of  the  enquiry  as  to  the  title  of  the  complain- 
ant in  the  original  bill. 
This  enr^uiry  is  material. 

1st.  Under  the  Statute — because  it  declares  that  none  but  a  cred- 
itor shall  sue. 

2d.  There  may  be  equities  between  other  actual  creditors,  antl 
the  defendants  which  will  be  defeated  by  allowing  a  trustee  to  sue. 

The  propriety  of  making  the  bona  fide  creditor  the  complainant  is 
farther  evident  from  the  next  subject  of  enquiry  in  the  cross  bill — 
which  is  as  to  the  consideration  paid  by  the  complainants  in  the  orig- 
inal bill  for  the  claims  against  the  defendant. 

II.  The  complainants  in  thecross  bill  further  contend  that  they  have 
a  i-ight  to  the  discovery  of  the  amount  paid  by  the  defendant  for  the 
demands  on  which  he  seeks  to  recover  in  his  original  bill  of  com- 
plaint. 

The  proposition  is  that  the  complainant  in  the  original  bill  can  be 
treated  in  this  court  as  a  crodilor  only  to  the  amount  which  he  actu- 
ally paid  for  the  demands  which  he  seeks  by  tliat  bill  to  enforce, 

I  assume  that  the  original  bill  must  be  considered  as  filed  for  the 
benefit  of  all  the  creditors  of  the  bank,  and  that  the  monies  received 
under  the  decree  must  be  considered  as  a  common  fund  for  the  bene- 
fit of  all  the  creditors. 


44G  CASES  IN  CHANCERY. 

Firsicirruii.  Reference  is  made  to  the  Statute  of  1839  and  to  the  argument  of 
the  defendant's  counsel  in  the  case  of  Piquette  vs.  Risdon,  et.  al.,  di- 
rectors of  the  Bank  of  Saline. 

By  referring  to  section  17  of  the  act  of  1839,  (p.  98J  we 
find  that  the  receivers  are  made  subject  to  all  the  obligations  imposed 
by  law  on  trustees  of  insolvent  debtors. 

In  R.  S.,  J).  G08,  sec.  1,  we  have  a  definition  of  this  term,  and 
in  the  same  volume,  p.  603,  Sec.  8,  we  find  a  positive  enactment  that 
a  petitioning  creditor  who  shall  have  purchased  or  procured  to  be  as- 
signed to  him  a  claim  against  the  insolvent  for  less  than  its  nominal 
amount  shall  be  deemed  a  creditor  to  the  amount  only  actually  paid 
by  him. 

These  enactments  bind  the  receiver  and  this  court. 

And  such  would  be  the  rule  on  general  equitable  principles,  inde- 
pendent of  these  statutes. 

Equity  administers  legal  assets  on  equitable  principles.     3  Paige, 

R.  167. 

EquaUty  is  equity,     ih  ;  also  1  Paige  R.,  25^). 

Receivers  are  bound  to  inquire  into  the  equitable  chamcter  of  the 
debts  piesented  to  them.     4  Paige  R.,  224. 

These  general  principles  will  be  found  recognized  and  applied  by 
Chancellor  Walworth.  7  Paige  R.  615,  See  also  Edwards  on  Re- 
ceivers, 233. 

Under  these  circumstances  it  is  submitted  that  the  enquiry  as  to  the 
amount  paid  by  the  defendant  for  the  claims  which  he  seeks  to  en- 
force is  pertinent  and  material.  He  seeks  to  recover  of  the  defen- 
dant as  connected  with  the  bank,  in  case  the  bank  was  legally  in  ex- 
istence. 

Is  the  defendant  protected  from  the  disclosure? 

A  number  of  authorities  are  cited  by  the  defendant  to  show  that  he 
is  not  obliged  to  discover  his  own  title. 

These  authorities  have  all  reference  to  real  estate,  and  they  all 
rest  on  the  principle  that  a  party  must  recover  on  the  strength  of  his 
own  title,  and  is  not  entitled  to  any  discovery  of  the  defects  of  his  ad- 
versary's title  when  such  disco\^ery  does  not  tend  to  establish  ajirm- 
ativeJy  the  piainti_[ps  case. 

Is  this  our  case?  Is  not  the  discovery  we  seek  in  affirmance  of  our 
own  defence,  just  as  much  as  a  discovery  of  payment  or  satisfaction? 


CASES  IN  CHANCERY.  447 

Concede  the  principle  that  the  complainant  in  the  original  bill  is  to  be  ^'"'"'  <-'"■<="'• 
deemed  a  creditor,  so  far  only  as  he  has  paid  value  lor  his  demands,      j.^,^ 
and  you  concede  tiiis  point.     For  if  this  be  so,  it  is  a  part  of  our  de-    AVhceicr. 
fence,  and  in  what  way  can  we  examine  the  original  comjjlainant 
touching  this  defence   but   by  a  cross  bill?     Slory^s  Eq.^  Fl.  311- 
12. 

But  in  truth  the  rules  insisted  on  by  the  defendant  in  this  cross  suit 
grew  out  of  the  rules  relatng  to  titles  to  real  property,  and  are  not  ap- 
plicable to  this  case  ;  and  if  they  were,  they  do  not  affect  the  riglit  of 
the  defendant  (in  the  original  suit)  to  a  discovery.  A  defendant  has 
a  right  to  a  discovery  of  the  defects  in  the  plaintiff's  title.  See  Hare 
on  Discovery,  203-4. 

The  Chancellok. — The  original  bill  in  this  case  (1.)  was  filed  for 
the  purpose  of  enforcing  the  liability  of  the  defendants  in  that  case,  a 
part  of  whom  are  the  complainants  in  this  cross  bill,  as  directors  and 
stockholders  of  the  Clinton  Canal  Bank,  an  institution  organized  un- 
der the  general  banking  law  of  this  state.  In  order  to  arrive  at  a  re- 
sult upon  the  questions  presented  upon  this  demurrer  it  will  be  neces- 
sary to  give  a  construction  to  the  provisions  of  the  statute  bearing  up- 
on this  class  of  corporations. 

By  the  25ih  section  al'  the  original  act,  Laws  of  1837,  p.  84,  and 
by  the  21st  section  of  the  amendatory  act,  Laivs  of  1S2S,  j).  32,  the 
directors  are  made  liable  for  the  amount  which  an  insolvent  institu- 
tion organized  under  these  acts  may  be  indebted,  and  the  stockhold- 
ers are  secondarily  made  liable  for  the  debts  of  any  such  insolvent 
institution  in  proportion  to  the  amount  of  stock  of  any  such  stock- 
holders. 

The42d  section  of  the  act  of  1839,  2^»g<^  102  of  the  Laws  of  lliat 
year,  provides  that  whenever  any  creditor  of  a  corporation  shall  seek 
to  charge  the  directors,  trustees  or  other  superintending  officers  of 
such  corporation  or  the  stockholders  on  account  of  any  liability  crc- 
ated  by  law,  he  may  file  his  bill  for  that  i)urpose  in  the  court  of  chan- 
cery. 

By  the  act  under  which  this  bank  was  organized  the  liabilities  of 
the  directors  and  stockholders  were  fixed.  The  act  of  1839  prescri- 
bed the  mode  in  which  a  creditor  may  enforce  this  liability.' 

The  original  bill  in  this  case  seeks  to  charge  the  directors  and  stock- 

VoL.  I.  57 


448  CASES  IN  CHANCERY. 

FirBtcircuit.  holders  as  such  under  the  act,  or  in  the  alternative  as  partners  frau- 
dulently combining  under  color  of  the  general  banking  law. 

For  the  purpose  of  a  defence  to  the  original  bill  the  discovery 
sought  by  the  cross  bill  is  immaterial.  The  statute  makes  the  direc- 
tors and  stockholders  liable  for  all  deficits  in  consequence  of  the  in- 
solvency of  the  bank. 

If  the  defendants  are  fraudulent  copartners,  they  are  equally  lia- 
ble for  the  entire  amount  of  the  indebtedness  of  the  concern.  It  is 
not  alleged  that  the  money  is  not  actually  due  from  the  defendants, 
and  the  mere  fact,  from  the  course  pursued  by  the  stockholders  and 
officers  of  the  bank,  their  notes  had  become  depreciated  in  the  mark- 
et would  not  discharge  them  from  their  liability,  which  is  for  the 
entire  amount  of  the  indebtedness  of  the  concern. 

It  is  not  alleged  that  the  complainant  is  not  the  assignee  of  the  cer. 
tificates,  but  it  is  alleged  that  if  he  is  the  assignee  of  the  certifi- 
cates, and  holder  of  the  bills  he  holds  them  as  trustee  for  Hill,  or 
some  other  person  or  persons.  Where  the  object  of  the  bill  is  mere- 
ly to  collect  money  or  reduce  it  to  possession,  it  is  not  necessary  for 
an  assignee  either  of  a  bond,  note  or  chose  in  action  to  make  the  ces- 
tui que  trust  parties,  although  the  rule  is  otherwise  where  the  exist- 
ence or  enjoyment  of  trust  property  is  to  be  affected  by  the  prayer 
of  the  suit.      Calvert  on  Parties  17,  Law  Library  212. 

There  is  no  pretence  that  the  amount  claimed  by  the  bill  is  not  due 
and  I  do  not  perceive  how  the  discovery  sought  for  by  the  cross  bill 
can  constitute  a  det'ence. 

Demurrer  allowed. 


(1.)  This  CHse  .should  have  siircpeileil  Ihc  rase  of  If'/icclcr  vs.  Clinlim  Gannl  Bank  ct.  uL,  on 
page  449.  instead  ol  preceding  ii,  ilial  being  ilie  original  and  this  ilie  cross  suit. 


CASES  IN  CHANCERY.  449 


Russell  M.   Wheeler,  vs.  Clinton   Canal   Bank,  Willfam  S.  ^'"'Circu.t. 
Stevens,  Samuel    C.  Munson,  Elkanah   B.  Comstock,    Elijah  ^'^y^^ 
F.    Cook,  Alphonso  B.  Newcoeb,  William    Phelps,  William        vl'"' 
H.   Adams,    Samuel  Powek,  David   H.  Parker,    William   M,  ^■''"'"J'  ^''- 

rr  iir  !»»  TT7  -KT  T  ""'  Bank. 

Knowlton,  Warren  Messenger,  VVtLLtAM  A.  Nelson,  Isaac 
Adams,  William  F.  Mosley,  David  Paddock,  Isaac  Paddock, 
George  W.  Wisner,  Peter  Van  Avery,  Alfred  Judson,  James 
L.  Conger,  Charles  Hubbell,  and  James  E.  Beers. 

Where  a  bill  is  fileil  charging  defendants  as  a  voluntary  association,  combining  to  defraud  such 
as  should  receive  their  notes,  /leld  that  the  fact  that  another  creditor  has  seen  fit  to  treat  them 
ns  a  corporation,  and  has  filed  his  bill  and  obtained  the  appointment  of  a  Receiver  of  their 
effects  as  such,  cannot  deprive  complainant  of  his  remedy  in  tliis  form,  if  he  can  establish  the 
allegafions  in  his  bill. 

Where  bill  charges  defendants  in  an  original  procedin;;  ns  a  fraudulent  association,  it  is  no  ground 
of  demurrer,  that  it  prays  the  appointment  of  a  Ueceivcr.  The  rules  concerning  judgment 
creditor's  bills  do  not  apply  to  such  a  case. 

Where  remedy  at  law  is  difiicult  and  doubtful,  this  court  will  entertain  jurisdiction. 

Courta  of  Equity  have  concurrent  jurisdiction  in  cases  of  fraud. 

A  bill  may  be  sustained  against  different  persons  relative  to  matters  of  the  same  nature,  in 
which  all  of  the  defendants  were  more  or  less  concerned,  though  not  jointly  in  each  act. 

This  was  a  hearing  on  demurrer. 

The  bill  states  that  under  the  act  known  as  the  general  banking 
law,  books  were  opened  at  Pontiac,  in  the  county  of  Oakland,  on 
or  about  the  twentieth  day  of  Novennber,  1837,  to  receive  subscrip- 
tions for  a  banking  association  to  be  located  at  that  place,  and  called 
the  "  Clinton  Canal   Bank,  "  with  a  capital  stock  of  fifty  thousand 

dollars,  to  be  divided  into  one  thousand  shares  of  fifty  dollars   each. 
That  the  whole  amount  of  stock  was  taken,  and  that  on  the  twenty- 
third  day  of  November,  aforesaid,  an  election  of  directors  and  offi- 
cers of  said  bank  was  duly  held      That  bonds  were  executed  and  filed 
with  the  Auditor  General,  and  the  directors  and  stockholders  claim- 
ing to  have  complied  with  the  provisions  of  law  issued  their  bills,  and 
commenced  banking  business  under  their  corporate  name  on  or  about 
the  eleventh  day  of  December,  1837.     The  bill  then  sets  out  several 
assignments  and  transfers  of  stocks,  and  consequent  changes  of  offi- 
cers, and  states  that  in  pursuance  of  an  act  amendatory  to  the  gen- 
eral  banking   law,  different  bonds  and  mortgages  were  executed  to 


450  CASES  IN  CHANCERY. 

First  Circuit,  jjjg  AucJitoi'  General  as  collateral  security,  at  various  times  from  somo 
Wheeler,  ^^f"^  ^^  March,  1838,  to  some  time  in  May   of  tlie  same   year.     It 

Clinton  Cn-  then  sets  out  further  assignments  and  changes  of  officers,  and  prays 
a  discovery  of  such  other  stockholders  and  officers  as  may  have  been 
interested  in  said  bank.  States  that  the  bank  continued  to  do  busi- 
ness until  about  August  twenty-second,  1838,  since  which  time  it 
ceased  to  carry  it  on,  and  has  had  no  officers  or  offices  during  the 
past  year.  That  the  bank  went  into  operation  under,  and  availed  it- 
self of  the  provisions  of  the  suspension  law  of  June  twenty-second, 
1837,  and  did  not  make  a  practice  of  paying  its  liabilities  in  specie 
until  about  May  sixteenth,  1838.  That  only  $2,220,95  of  the  capital 
stock  was  paid  in  specie,  and  the  balance  of  the  first  thirty  per  cent 
was  paid  in  specie  certificates  and  stock  notes,  none  of  which  have 
been  paid,  and  that  no  more  than  the  first  thirty  per  cent  of  the  cap- 
ital stock  has  ever  been  paid  in.  That  on  the  twenty-fourth  day  of  Feb- 
ruary, 1888,  the  bank  had  on  hand  in  specie  only  $3,164  85,  that  the 
average  amount  on  hand  from  the  time  of  commencing  business  up 
to  the  sixteenth  of  May,  1838,  was  less  than  three  thousand  dollars, 
and  at  no  time  amounted  to  more  than  three  thousand  five  hundred 
dollars.  That  on  the  twenty-fourth  day  of  February  aforesaid  their 
■circulation  amounted  to  $30,450,  and  their  indebtedness  exclusive  of 
circulation,  to  $7,867.  That  on  the  same  day  the  amount  due  to  the 
bank  from  its  directors  was  $6,390  81,  from  stockholders,  $3,580, 
and  from  other  persons,  $20,402  80.  That  previous  to  the  injunc- 
tion issued  in  October,  1833,  the  bank  had  in  circulation  over  $39,000, 
and  time  drafts  amounting  to  more  than  $25,000,  most  of  which  are 
unpaid,  and  parcels  have  been  presented  for  payment  from  time  to 
time,  and  payment  refused.  Charges  that  during  the  whole  period 
of  its  operation,  the  directors  and  stockholders  owed  the  bank  more 
than  four  limes  the  amount  of  specie  and  good  funds  paid  in; 
that  at  the  time  when  it  stopped  business,  William  S.  Stevens 
was  owing  nearly  $20,000,  Charles  Ilubbell  more  than  $5000,  and 
other  directors  and  stockholders  owed  considerable  sums,  and  that  the 
whole  amount  of  assets  reported  by  the  receiver,  including  these 
debts  is  less  than  $50,000,  most  of  which  he  considers  doubtful. 
That  the  bank  has  never  been  solvent  since  January,  1888,  and  can- 
not pay  more  than  ten  per  cent,  of  its  liabilities  and  has  no    proper- 


CASES  IN  CITANCHRY.  451 

ty  wliicli  can  bo  reached  at  law.     Charges  the  subscribers  to  the  bank  F'rsK'irciiit. 
witli  forming  the  association  for  fraudulent  purposes,  and   that  all  the    ^vhecicr. 
stockholders  knew  and  participated  in  their  fraudulent  designs  and  op-  cijinoii'  c.i 
erations.     States  that  complaniaiit  is  a  creditor  ol  tlie  bank,  liolding 
its  notes  and  receiver's   certificates,  that  they  were  presented   to  re- 
ceiver for  payment  and  payment  refused.     Charges  that   detendants 
are  individually  liable.     Prays  the  appointment  of  a  receiver,  and 
satisfaction  from  the  assets  and  property  of  defendants. 

The  defendants  demurred  to  the  bill,  and  assigned  the  following 
causes  : 

1.  That  complainant  had  an  adequate  remedy  at  law. 

2.  That  a  receiver  has  been  appointed,  and  it  does  not  appear  that 
there  will  be  any  deficiency  of  assets. 

3.  That  tlie  defendants  arc  charged  in  diilerent  capacities,  and 
having  distinct  liabilities. 

4.  That  the  stocklioldcrs  cannot  be  charged  until  the  property  of 
the  directors  is  found  insufllcient. 

5.  That  there  is  no  sufficient  equity  in  the  bill. 

G.  That  the  bill  prays  for  a  receiver,  while  it  shows  one  to  have 
been  already  appointed,  without  asking  his  removal,  or  showing  it  to 
be  necessary. 

W.  Draper,  appeared  for  D.  Paddock,  et.  al. 

S.  G.  WatsoiX,  for  William  Phelps. 

Richardson  &.  Knight,  for  Alfred  Judson,  et.  al. 

W,  F.  MosELY,  in  person. 

It   appears   by    the   said  bill   that   the  same   is  exhibited  agains 
these  invidual  defendants  and  the   Clinton  Canal  Bank,  and   otherst, 
&c.,  for  several  and  distinct  matters,  and  causes  in  many   of  which 
it  appears  bv  said  bill  these  defendants  are  not  in  any  manner  inter- 
ested or  concerned. 

"  If  a  bill  blends  together  a  demand  by  the  plaintiff  as  legatee 
against  the  defendant  as  executor  with  a  demand  of  the  plaintiif  in 
his  private  capacity  against  the  defendant  in  his  individual  character* 
it  is   good  cause  of  demurrer.  "     4  John.  Ch.  Rcji.  199. 

"  If  a  bill  be  brought  concerning  things  of  distinct  nature  against 


452  CASES  IN  CHANCERY. 

Firsicirouii.  several  persons,  or  against  one  it  is  demurrable.  2  Mad.  Ch.  p.  234. 
""^^^^^^^  See  also  5  Paige  Ch.  Rep.  79.  In  that  case  the  court  says  : — 
ciimon  Ca-  "  The  form  and  effect  of  a  demurrer  to  a  bill  in  Chancery  for  mul- 
nui  Hank.  ^J{v^^.jQ^JgJ^g^g  jg  substantially  the  same  as  a  demurrer  to  a  declaration 
at  law  for  a  misjoinder  of  parties,  or  of  different  causes  of  actions 
which  cannot  be  properly  litigated  in  the  same  suit.  "  "And  where 
a  joint  claim  against  two  defendants  is  improperly  joined  in  the  same 
bill  with  a  separate  claim  against  one  defendant  only,  either  or  both 
may  demur.  *'  '  And  the  same  principle  is  found  in  the  6  Paige 
28,  and  the  authorities  there  cited.  This  bill  is  exhibited  against 
a  bank,  against  directors  of  the  bank,  against  stockholders  of  the 
bank,  against  the  obligors  on  one  bond,  in  which  the  penalty  is  said 
to  be  $r2.'3,000,  against  the  obligors  on  another  bond,  in  which  the 
penalty  is  said  to  be  $75,000,  and  also  against  the  mortgagors  of  real 
estate  pledged  for  the  redemption  of  the  bills  and  liabilities  of  the 
said  bank. 

By  said  bill  it  appears  tliat  the  said  association  of  persons  never 
became  a  legal  corporation  or  banking  company  in  accordance  with 
the  statute. 

By  the  act  to  organize  and  regulate  banking  associations,  passed 
March  15,  1837,  it  is  enacted  that  "  no  such  association  shall  com- 
mence operations  until  thirty  per  centum  of  the  capital  stock  shall 
be  paid  in,  in  legal  money  of  the  United  States.  " 

The  bill  alleges  ihat  the  whole  of  the  stock  was  taken,  and  that 
"  only  $2,220  95  of  the  capital  stock  was  paid  in  in  specie,  the  bal- 
ance of  the  thirty  per  cent,  being  paid  in  specie  certificates  or  stock 
notes,  that  no  more  was  ever  paid  in,  and  that  none  of  the  certificates 
or  stock  notes  have  been  paid."  See  32  f  jlio  of  the  bill,  see  also  9th 
section  of  act  of  1837,  where  it  says  that  "  all  such  persons  as  shall 
become  stockholders  of  any  such  association  shall,  in  compliance 
with  the  provisions  of  this  act,  constitute  a  body  politic  in  fact  and  in 
name,  «S;c.  " 

By  said  bill  it  does  not  appear  that  any  matter  is  set  forth  in  said 
complainant's  bill  for  which  he  has  not  an  adequate  remedy  in  a 
court  of  law. 

The  rule  is  this:     "In   general,  courts   of  Equity   will   not  as- 


CASES  IN  CHANCERY.  453 

sume  jurisdiction  where   the    powers  of    the  ordinary   courts   are '""'"i <-"'•■•:"'' 
sufficient    for   the   purposes  of   justice.  "      Tlie    present     suit    is   ^v^ccier. 
brought   to    recover   the    amount    of  the   bills   and    Receiver's  re-  ir\n"n  ca- 

,    .  ,,,,  ,.  mil  Bank. 

ceipts  now  in  possession  of  the  complainant,  i  he  statute  directs 
that  all  demands  against  the  bank  after  the  appointment  of  a  Receiv- 
er, shall  be  presented  to  him  ;  and  a  mode  of  proceeding  is  prescrib- 
ed by  which  all  the  assets  of  the  bank  are  to  be  applied  to  their  pay- 
ment. Here  is  an  adequate  statutory  remedy,  so  far  at  at  least  as 
the  assets  extend. 

There  is  also  an  adequate  legal  remedy  which  may  be  pursued  upon 
the  liability  of  the  defendants,  as  a  bank,  as  directors,  as  stockholders, 
obligors  on  the  bonds   and  as  mortgagors, 

Seth  Beach  has  been  appointed  by  the  Chancellor,  Receiver  of 
the  bank,  and  as  such  Receiver,  is  vested  with  all  the  estate  of 
the  bank,  and  is  a  Trustee  for  the  creditors  and  stockholders. 

By  the  tenth  section  of  the  laws  of  1839.  page  96,  the  Receiver 
is  vested  with  all  the  estate,  real  and  personal,  of  the  corporation, 
&c.,  and  is  the  trustee  of  the  estate,  for  the  benefit  of  creditors  and 
stockholders. 

By  the  eighth  section,  the  Chancellor  is  authorized  to  appoint  Re- 
ceivers, &c.,  and  on  such  appointment  the  corporation  shall  there- 
upon be  dissolved,  and  shall  cease  to  exist. 

As  such  Trustee  the  Receiver  is  the  only  accountable  person,  the 
corporation  is  defunct,  the  powers  of  the  defendants,  their  rights  and 
duties  abrogated,  and  passed  over  by  operation  of  law  to  the  Recei- 
ver, the  only  person  known  in  the  law,  in  the  place  of  said  corpora- 
tion. As  to  power  of  Trustees,  see  6  Miimf.  R.  366,  2  i'ldgCy 
21,438. 

The  bill  prays  for  the  appointment  of  a  Receiver,  when  it  appears 
from  said  bill  that  a  Receiver  had  before  been  appointed  to  take  charge 
of  the  estate  and  effects  of  said  bank,  without  showing  that  said  ap- 
pointment had  been  obtained  by  collusion  or  fraud,  or  that  said  Re- 
ceiver was  an  improper  person  to  discharge  the  duties  of  said  trust, 
and  seeking  his  removal. 

The  remedy  of  the  complainant,  for  the  appointment  of  a  new  Re- 
ceiver, is  by  filing  a  sup[)lemental  bill  ;  sec  5    Paige  46.     And  al- 


454  CASES  IN  CHANCERY. 

Kirst  Circuit,  thougl)  the  forty-second  section  of  the   act,  allows   any  creditor  to 
Wheeler    ^*^^  ^'^  ^'''  against  directors  and  and   trustees,  and  to   proceed  as  in 
Clinton  Ca-  Other  cases,  yet  it   was  never    intended  to  apply  in  a  case   where  a 
Receiver  had  been  appointed,  and  the  property  and  effects  transfer- 
red from  the  bank  and  its  officers  to  the  trustee. 

It  would  in  effect  be  authorizing  him  to  do  an  act  by  which  he 
could  derive  no  benefit  whatever. 

If  the  Receiver  is  an  improper  person,  then  tlie  remedy  was  by 
removal,  on  application,  founded  on  petition  or  affidavits  or  other  evi- 
dence of  improper  conduct,  and  that  tiie  trust  funds  were  in  dan- 
ger of  being  squandered.     See  Hop.  Re}).  435. 

The  complainant  has  not  alleged  that  he  had  obtained  any  judg- 
ment or  decree  against  the  defendants  or  either  of  them,  or  that  exe- 
cutions had  been  issued  and  returned  unsatisfied. 

This  suit  having  been  instituted  in  a  case,  not  within  the  statute  of 
1839,  may  have  been  intended  as  a  creditors  bill  so  called,  under  the 
twenty-fifth  section  of  chapter  two,  title  one,  part  three  of  the  Re- 
vised Statutes,  of  the  general  powers,  duties  and  jurisdiction  of  the 
court  of  Chancery,     R.  (S.  365. 

And  this  section  of  the  act  requires  that  an  execution  should  have 
issued  upon  a  judgment  at  law  against  the  property  of  the  defendant 
shall  have  been  returned  unsatisfied  in  whole  or  in  part,  which  is  not 
alleged  ih  this  bill.     See  Chancery  Rule,  109. 

The  bill  does  not  allege  that  the  complainant  knew,  or  had  reason 
to  believe  that  the  defendants  or  either  of  them  has  or  had  equitable 
interest,  things  in  action  or  other  property  of  the  value  of  one  hun- 
dred dollars,  or  more,  exclusive  of  all  prior  claims,  which  the  com- 
l)lainant  had  been  unable  to  discover  and  reach  by  execution.  Chan- 
cery Rule,  109, 

The  bill  does  not  charge  that  it  is  not  exhibited  by  collusion  with  the 
defendants  or  for  die  purpose  of  protecting  the  property  and  effects 
of  the  debtor  against  the  claims  of  the  creditors,  and  that  said  bill 
was  filed  for  the  sole  purpose  of  compelling  payment  and  satisfaction 
of  complainant's  own  debt.     Chancery  Rule,  109. 

E.  C.  Seaman,  contra. 

1 .  The  bill  shows  that  the  subscribers  to  the  stock  of  this  bank- 
ing company,  did  not  comply  with  the  conditions  of  the  general  bank- 


CASES  IN  CHANCERY.  455 

ing  act ;  that  is  they  did  not  pay  in  thirty  per  cent  of  the  stock   and  i''''*"  circuit, 
comply  with  those  provisions  of  the  statute  which  constitute  a  condi-    ^v,,ee,er. 
tion  precedent  to  their  becoming  a  corporation  ;  but,  on   tiie  contra-  ciimon  ca- 
ry,  that  all  their  proceedings  are  based  on  a  fraudulent  violation  of 
the  statute,  which   was   used    merely  as   a   cover  or  device   under 
which  they  carried  on  their  fraudulent  schemes  and  practices  ;  they 
therefore  did  not  become  a  legal  corporation,  but  constituted    a  joint 
stock  unincorporated   banking  company,  and  are   liable   individually 
as  copartners  in  a  swindling  operation.     See  section  ninth  of  gener- 
al banking  law,  and  section ybwr/A  of  the  amended  act. 

2.  A  court  of  Chancery  has  jurisdiction  of  the  case,  independent 
of  any  statute,  and  can  enforce  the  collection  of  the  plaintiffs  claim 
against  the  directors  and  stockholders  of  the  company  on  the  follow- 
ing grounds : 

1st.  On  account  of  the  convenience  of  enforcing  contributions  be 
tween  the  several  defendants  in  proportion  to  the  amount  of  stock 
held  by  each.  See  the  case  of  Briggs  vs.  Penniman,  1.  llojh  Ch. 
Rep.  300 ;  8  Cow.  Rep.  387  ;  Mandeville  vs.  Bn'ggs,  2  Pet.  Rep. 
482  ;  8   Peters  R.  256. 

All  the  defendants  are  liable  in  their  individual  capacity  jointly 
and  therefore  the  bill  is  not  multifarious.  Brinkerhoof  vs.  Brown. 
6  J.  C.  R.  139  to  159.  See  more  jmrticularly pages  153  and' A.  All 
combined  to  defraud,  although  the  defendants  performed  distinct  parts 
in  the  drama  of  fraud,  all  tending  to  one  point.  Felloivs  vs.  Fel- 
lows, 4  Cow.  Rep.  G82,  and  Campbell  vs.  McKay,  7  Simons  564  ; 
Story's  Eq.  PL  530  and  539. 

Persons  liable  on  a  contingency  are  proper  parties,  defendants  in 
equity,  Story's  Eq.  PI.  sections  74  and  75,  07i  page  76  a7id  77.  sec- 
tion 199,  page  152,  and  sections  169,  172,  173  and  174;  pages  159, 
160,  151  and  173;  sec.  232  page  199  and   200;  sec.  224,  page  196. 

In  a  variety  of  cases,  the  plaintiff  may  or  may  not  join  certain 
persohs  as  parties,  and  defendants  at  his  election.  Story's  Eq.  PL 
section  221, page  194;  section  169, pages  159  andlGO;  2  Paige,  R. 
279. 

2nd.  In  consequence  of  the  frequent  transfers  of  stock  in  this  case 

as  well  as  the  frequent  change  of  directors  or  some  of  them,  and  the 

difficulty  or  impossibility  of  showing  when  the  notes  or  bills   of  the 
Vol.  I.  58 


45G  CASES  IN  CHANCERY. 

First  Circuit.  ]^^^^\^  ^^^  which  (his  suit  was  cominencec],  were  issued,  it  would  be  dif- 
AVheeier.    ficult  if  not  impossible  for  the   plaintilF  to   determine   on   whom  to 

Clinton  Ga-  fix  the  liability  at  law,  and  his  remedy  if  any  at  law,  would  there- 
fore be  doubtful  and  difficult,  and  on  that  account  a  court  of  Equity 
has  jurisdiction.  American  Insurance  Co.  vs.  Fisk,  1  Paige  Cli. 
Rep.  92  ;  Weymnuth  vs.  Boyer,  1  Ves.   Jam.  416. 

3rd.  The  transactions  of  the  defendants  are  fraudulent,  and  they 
used  the  general  banking  law  merely  as  a  cover  for  their  fraudulent 
devices  and  schemes.  A  court  of  Equitj'  has  concurrent  jurisdiction 
with  courts  of  law  in  matters  of  fraud.  Coll  vs.  WolUster  and  Ar- 
nold 2  P.  Williams,  156;  Green  vs.  Barrett;  1  Simons,  45,  do  37; 
Blair  vs.  Agar,  2  Simo?:s,  289. 

4th.  The  statute  of  Michigan  of  1839  for  the  voluntary  dissolu- 
tion of  corporations,  and  for  other  purposes,  applies  only  to  legal 
.  corporations,  and  not  to  cases  of  this  kind,  where  the  company  did 
not  become  a  legal  corporation.  That  statute  also  gives  an  accumu- 
lative remedy,  and  does  not  take  away  the  usual  remedy  to  which 
the  creditors  were  entitled  in  equity  previous  to  the  statute.  We 
claim  the  common  remedy  in  equity  independent  of  the  statute. — 
Crittenden  vs.  Wilson,  5  Coic.  1G5. 

The  Chancellor. — The  bill  in  this  cause  subsstantially  charges 
the  defendants  with  having  combined  under  the  color  merely,  of  the 
general  banking  law  of  this  state,  for  the  purpose  of  defrauding  the 
complainant  and  other  persons,  who  should  receive  the  notes  of  said 
banking  association.  It  not  only  charges  that  the  original  stockhold- 
ers and  officers  of  the  institution,  but  also,  that  the  persons  severally 
charged  with  having  become  subsequent  purchasers  of  the  stock,  pur- 
chased for  the  purpose  of  aiding  in  such  fraud  and  with  the  intent 
and  design  to  deceive  and  defraud  the  complainant  and  all  the  credi- 
tors of  said  association.  It  purports  to  charge  them  and  each  of  them 
in  their  indiv'dual  capacities  as  members  of  a  fraudulent  copartner- 
ship, or  association.  A  variety  of  questions  have  been  raised  upbn 
the  different  demurrers.  It  will  not  be  necessary  to  notice  all  the 
points  raised  at  the  argument,  as  the  grounds  upon  which  the  bill  is 
sustained,  and  the  demurrers  overruled,  will  appear   in  the  opinion 


CASES  l.\   CHANCERY.  457 

The  complainant  in  this  case  seeks  to  charge  the  defendants  as  a  vol-  t"»si  circuii, 
unfary  association,  who  under  the  pretence  and  color  of  the  general  ^vhccicr 
banking  law  of  this  state  have  conspired  to  defraud  the  complainant,  ciinton  Ca- 
and  such  others  as  should  receive  the  notes  of  said  association.  The 
fact  that  another  creditor  has  seen  fit  to  treat  them  as  a  corporation, 
and  has  filed  his  bill  and  obtained  the  appointment  ofa  Receiver  of 
the  effects  of  this  corporation,  cannot  deprive  this  complainant  of  his 
remedy,  in  this  form,  if  he  can  establish  tlie  truth  of  the  allegations 
of  his  bill.  The  objection  that  the  bill  contains  a  prayer  for  the  aj)- 
pointment  of  a  Receiver  is  not  a  good  cause  cf  demurrer;  it  may  or 
may  not  have  been  necessary,  but  is  not  such  an  ot jection  as  can 
sustain  the  demurrer.  This  is  not  what  is  termed  a  creditors  bill  ; 
but  on  the  contrary,  it  seeks  to  charge  the  defendants  in  an  original 
proceeding  as  members  of  a  fraudulent  association  or  co-partnership. 
The  objectfons  therefore  that  the  complainant  has  not  in  the  allega- 
tions in  his  bill,  conformed  to  the  rules  required  in  creditors  bills, 
have  no  application,  from  the  view  I  take  of  the  scope  and  objects  ot 
the  bill.  Another  cause  of  demurrer  is  that  the  complainant  has  an 
adequate  remedy  at  law,  and  therefore  a  court  of  Chancery  has  not 
jurisdiction.  The  frequent  transfers  of  stock  and  changes  of  inter- 
est, and  the  extraordinary  rcanner  in  which  the  business  has  been 
conducted,  according  to  the  showing  in  the  bill,  would  render  the 
complainant's  remedy  at  law  both  difficult  and  doubtful;  this  of  itself 
is  sufficient  to  give  this  court  jurisdiction.  1  Paige  R.  920  Courts  of 
Chancery  have  also  concurrent  jurisdiction  in  cases  of  fraud.  The 
objection  of  multifariousness,  that  the  several  directors  and  stockhol- 
ders  are  made  parties,  notwithstanding  they  were  connected  with  this 
association  at  diffijrent  periods,  and  have  distinct  rights  and  liabilities 
is  the  next  and  principal  remaining  question.  From  the  manner  in 
which  the  business  v/as  conducted,  it  seems  to  me  that  the  course  the 
complainant  has  pursued  was  the  proper  one.  The  stockholders  and 
directors  only,  are  parties,  and  it  is  alleged  that  they  all  performed 
different  parts  in  the  same  drama.  A  bill  may  be  sustained  against 
different  persons  relative  to  matters  of  the  same  nature,  in  which  all 
the  defendants  were  more  or  less  concerned,  though  not  jointly  in 
each  act.  Should  it  prove  in  the  event  that  any  of  these  defendants 
were  not  partners  in  the  concern  at  the  time  the  notes  on  which  the 


458  CASES  IN  CHANCERY. 

Firstcircuit.  complainant  prosecutes  were  issued,  they  may  not  be  liable  to  contri- 
Wheeier.  ^^^®  ^^  their  payment.     But  if  it  proves  true  that  this  was  a  fraudu- 

ciinton  Ca-  lent  Combination,  merely  under  the  pretence  of  the  statute,  in  which 
the  defendants  all  participated  to  defraud  the  complainant,  it  is  but 
just  that  each  and  all  should  be  held  responsible  to  the  creditors  who 
have  been  defrauded  in  this  way.  From  tiie  view  I  have  taken  of 
this  bill  it  was  not  neces:ary  that  the  Receiver  should  have  been 
made  a  party.  The  complainant  is  entitled  to  his  dividend  from 
whatever  may  be  obtained  from  the  property  of  this  concern  in  the 
hands  of  the  Receiver,  without  making  him  a  party,  and  without  a 
waiver  of  hi&  rights  against  the  defendants  in  this  form. 
Demurrer  overruled. 


INDEX. 


A. 

AMENDMENT. 

yide,  PRACTICE,  PLEADING. 

1.  Where  leave  is  given  to  amend  an  answer  a  new  answer  wlih  the  ainendmenis  added,  rausl  be 
made,  filed,  and  copy  served,  or  ilie  original  answer  wiilidrawn  by  leave  of  ihc  court,  and 
tlie  amendments  added,  or  tlie  amendments  must  refer  to  the  portions  of  the  answer  on  file, 
intended  to  be  amended,  and  specifying  their  nature  and  application.  Mason  vs.  Detrail 
City  Bank,  -ii-Z. 

2.  Where  amendments  were  in  the  form  of  affidavits,  without  referring  to  the  answer,  it  was 
held  to  be  irregular.  ib. 

3.  Courts  have  always  been  rigid  in  requiring  that  the  proposed  amendments  should  be  slated  in 
the  application,  and  a  defendant  will  not  usually  be  permitted  to  setup  a  fact  or  state  of  facts, 
inconsistent  with  the  original  defence.    Freeman  vs.  Michigan  State  Bank,  311. 

4i  When  a  motion  was  made  to  amend  a  plea,  which  motion  was  based  upon  an  afTidavil,  sui- 
ting an  additional  fact,  which  was  unknown  to  the  defendant  at  the  time  of  tiling  the  origi- 
nal plea,  and  consistent  witli  tlie  facts  pleaded,  llie  court  granted  the  motion.  Ib. 

5.  It  is  not  usual  to  refuse  leave  to  amend  pleas,  yet  ihe  defendant  must  be  lied  down  to  &  very 
short  time,  in  which  to  amend.  This  practice  is  consistent  w  iih  the  practice  in  permitting 
amendments  to  sworn  answers,  and  there  is  no  reason  why  the  rule  should  not  be  admitted 
in  amending  pleas  as  well  ns  sworn  answers.  If  a  plea  may  be  amended  upon  the  ground 
of  a  mistake  or  inadvertence,  there  can  be  no  good  reason  why  it  should  not  be,  for  the  pur- 
pose of  stating  a  newly  discovered  fact  necessary  to  trie  defence  and  consistent  with  the  orig- 
inal plea.  ]b. 

6.  It  is  not  a  matter  of  course  to  allow  the  filing  of  an  amended  bill  after  replication  and  testi- 
mony. A  special  application  should  be  made  to  tlie  court,  with  a  full  statement  of  the  facts 
intended  to  be  incorporated  in  the  amended  bill,  so  the  court  can  judge  of  their  materiality. 
Hammond  vs.  Place,  438. 

7.  Facts  which  have  transpired  subsequent  to  the  filing  of  tlie  bill  cannot  be  eet  forth  by  way 
of  amendment.    .  U. 

APPEARANCE. 

Where  a  solicitor  has  appeared  in  a  cause,  and  a  demurrer  is  filed,  signed  by  solicitors  who 
have  not  appeared,  the  demurrer  may  be  treated  as  without  signature,  and  us  a  nullity. — 
Graham  vs.  Elmore,  265. 

ADMINISTRATOR. 

1.  Where  the  day  appointed  for  an  administrator's  sale  is  rainy  and  inclement,  and  but  few  per- 
sons appear  and  bid,  and  llie  bids  do  not  e.vcced  half  the  actual  value  of  the  properly,  it  is 
the  duty  of  the  administrator  to  adjourn  the  sale.    Bcaubien  vs.  Poupard,  206. 

2.  An  administrator  cannot  become  the  purchaser  at  a  sale  made  by  him  us  adminiELralor ;  and 


460  INDEX. 

wherean  admiiiislrator  procured  liis  brother-in-lavv  to  become  ilie  purcliascr,  and  immedi- 
ately afterwards  look  n  conveyance  of  the  premises  so  purchased,  from  his  brother-in-law, 
Ihc  sale  was  set  aside,  the  deeds  ordered  to  be  delivered  up,  to  be  cancelled,  and  a  re-sale  or- 
dered. ^*- 
3.  Where  an  administrator  under  a  license  from  a  Judge  of  Probate  was  proceeding  to  sell  the 
interest  of  the  intestate  in  sixteen  village  lots,  which  interest  was  stated  to  be  one  undivided 
half,  upon  a  bill  fdedby  the  other  parties  interested,  slating  that  the  intsetate  owned  only  an 
undivided  interest  of  one  third,  an  injunction  was  granted  to  restrain  the  sale,  and  the  Chan- 
cellor refused  to  dissolve  the  injunction,  until  the  interest  of  the  intestate  was  ascertained 
and  settled.     Thayer  vs.  Lane,                                                                                                 '-17  • 

ALIMONY. 

A  Court  of  Chancery  has  no  jurisdiction  In  a  case  where  the  bill  is  filed  for  alimony  merely.— 
Peltier  vs.  Peltier,  *'• 

ASSIGNEE. 

Courts  of  Equity  recognize  and  protect  the  rights  of  assignees,  and  enforce  the  performance  of 
contracts  in  their  favor.    Street  vs.  Dow,  427. 

ACKNOWLEDGMENT. 

1.  The  acknowledgmcul   is   no  part  of  an   instrument  of  assignment.    Livingston  vs.  Jones, 

165. 

2.  The  allegation  in  a  bill  that  the  assignment  of  a  bond  and  mortgage  was  duly  acknowledged 
before  a  commissioner  of  deeds,  according  to  the  laws  of  the  state  of  New  York,  wliere  the 
same  was  executed,  is  sufficient  on  demurrer.  -ifr- 


B. 

BANKS. 

yidc,  FRAUD,  C0RP0U.\TI0N. 

1.  AVhere  It  appeared  fioni  the  Statements  in  the  bill,  that  a  bank  commissioner  exammed  into 
the  affairs  of  the  Bank  of  Brest  on  the  second  day  of  August,  1838,aiid  the  specie  then  on 
hand  was  ©9,754  92,  and  that  another  examination  of  the  affairs  of  the  bank  was  made  on 
the  eleventh  day  of  the  same  month,  and  it  then  had  but  ^138  fe9,  and  Uiere  was  no  corres- 
pondent decrease  of  liabilities  ;  and  about  $44,000  of  the  issues  of  the  bank  were  in  the  hands 
of  agents  without  suflicient  sureties  ;  and  that  of  the  assets  there  were  $5,000  in  uncurrcnt 
notes;  and  that  S'23,000 of  post  notes  were  issued  on  the  fourth  day  of  the  same  month  of 
August,  without  being  endorsed  by  a  bank  commissioner;  and  the  bill  charged  the  bank  to 
be  insolvent ;  and  tlie  answer  admitted  the  facts  set  forth  in  the  bill,  but  denied  the  insolvency 
it  was  held  that  the  bank  was  insolvent  within  the  meaning  of  the  law,  and  that  a  proper  case 
was  made  for  the  appointment  of  a  receiver  to  take  eharge  of  its  effccls.  Bank  Commission- 
rrs  vs  Bank  of  Brest,  ^ 

2.  A  transfer,  by  way  of  security,  of  a  portion  of  the  elTects  of  a  moneyed  corporation,  for  the 
purposeof  carrying  on  the  concern,  is  within  the  powers  of  the  directors;  and  a  corpora- 
lion  which  has  no  particular  mode  pointed  out  for  closing  its  concerns,  may  make  an  assign- 
ment on  obtaining  the  assent  of  the  stockholders.  ^"• 

3.  The  directors  of  a  iiio:u-yed  corporation,  like  that  of  Uic  Bank  of  Brest,  have  no  power  to 
make  an  assignment,  williout  being  authorized  so  to  do  by  the  stockholders.  lb. 

\.  The  statute  prescribes  the  mode  in  which  the  aflairs  of  banking  associations,  established  un- 
der the  general  banking  law  of  this  stale,  shall  be  wound  np,  in  case  of  insolvency,  and  this 
forms  apart  of  ihe  security  to  the  puhlic,  and  is  one  of  the  conditions  npon  which  Ihey  take 
their  chartered  powers.  '"• 

.')    An  assignment  made  by  Ihc  directors  of  the  Bank  of  Brest,  to  u  trustee,  for  the  benefit  of 


INDEX.  461 

rredilors,  wiili  a  view  lo  cvaJi^  the  provisions  of  the  slatuie,  was  lielil  lo  be  against  the  poli 
vy  of  the  law,  nnd  void .  ,  ll>. 

6.  Where  an  applioulion  was  made,  under  ihe  act  of  June  21, 1S37,  for  an  injunction  against 
the  Bank  of  Pontiac,  and  the  bill  alleged  merely  a  demand  and  refusal  on  the  part  of  the 
bank  to  pay  its  notca,  ihe  Chancellor  refused  tu  grant  the  injunction  prayed  for.  Barnnm 
rs-   Bankof  Pontiar,  IIC. 

7.  In  the  act  incorporating  the  Bank  of  Pontiac,  the  act  of  April,  1833,  is  referred  to,  and  in 
effect,  made  a  part  of  its  charier.  That  act  gives  the  bank  sixty  days  within  which  to  redeem 
its  notes,  and  the  further  provision,  that  that  act  shall  not  prevent  the  issuing  of  an  injunction 
does  not  change  the  law  respecliiig  the  granting  of  injunclions.  lb. 

8.  The  act  of  June  21,  1837,  which  providi's  that  an  injunction  may  be  issued  when  any  bank- 
ing institution  shall  refuse  to  pay  its  debts,  is  not  imperative,  but  leaves  it  in  the  sound  dis- 
cretion of  tiie  court,  upon  aproper  case  being  made.  7ft 

0.  An  injunction  against  a  bank  goes  to  prevent  all  action  whatever,  and  Is  rather  in  the  nature 
of  a  linal  injunction,  which  is  sometimes  granted  at  the  termination  of  a  cause,  Ihan  the  usu- 
al injunction  to  prevent  some  particular  mischief.  /ft- 

10.  Except  in  cases  where  the  bill  is  filed  by  a  bank  commissioner,  showing  fraud,  violation  of 
the  charter,  or  insolvency,  courts  of  equity  require  notice  of  application  for  injunction, 
and  also  require  a  case  to  be  made  that  would  authorize  the  court  to  wind  up  the  concerns  of 
the  bank.  lb. 

J  I.  Where  an  individual  creditor  had  filed  his  bill  against  a  moneyed  corporation,  obtained  an 
injunction  and  the  appointment  of  a  receiver,  and  the  receiver  had  taken  upon  hirasell  the 
trust,  and  other  creditors  had  filed  their  claims,  it  ifos  Ac/d,  that  the  creditor  who  had  tiled 
his  bill,  oblainetl  theinjuuction,  and  the  appointment  of  a  receiver,  was  not  eniiileil  as  a  mat- 
ter of  right,  (iipon  being  paid  his  demand)  to  dissolve  the  injunction,  dismiss  his  bill,and  dis- 
charge the  receiver.     Fay  vs.  Eric  and  Kalamazoo  Rail  Road  Bank,  194 

12.  There  is  no  doubt  that  this  court  has  the  power,  in  such  case,  to  dissolve  the  injunction,  dis- 
charge receiver,  and  permit  tlic  party  to  dismiss  his  bill,  when  it  is  satis.'ied  tlial  the  interest 
of  all  concerned  will  be  best  s!il^?:ervcd  by  permitting  the  corporation  lo  manage  its  own  con- 
cerns, /ft- 

13.  AVherc  a  note  for  $10CO  was  made  payable  at  the  Bank  of  Michigan,  and  other  notes  were 
.  turned  out  by  the  maker  to  secure  the  endorser  of  the  $11)00  note,  with  the  understanding  and 

agreement  ihutlhc  noles  so  turned  out  should  be  placed  in  the  bank  for  collection,  and  when 
a  sufficient  amount  should  Le  collected  on  the  notes  so  turned  out,  lo  pay  the  ®  1000  note,  the 
same  should  be  applied  in  payment  tlicreof,  it  was  held,  that  it  came  fairly  witliin  the  scope  of 
the  powers  of  the  officers  of  the  bank,  ss  one  of  the  most  ordinary  transirclions  of  taking  se- 
curity for  a  debt.     Wales  vs.  Bank  of  Michigan,  30?. 

11.  The  provisions  of  the  acts  of  June  21,  lS-37,  and  the  act  of  April  12,  1S41,  in  regard  to 
banks  and  incorporaiionsconimenied  upon,  and  explained.  Attorney  General, vs.  Bankof 
Michigan,  315. 

15.  The  fact  that  a  bank  (not  protected  by  staiuie  authorizing  a  suspension  of  specie  payments) 
has  stopped  payment,  is  not  of  itself  conclusive  evidence  of  its  inability  to  pay  its  debts,  but 
isprima  facie  evidence  of  inability,  or  insolvency.  /ft- 

10-  The  rule  adopted  in  this  state,  has  been,  not  to  grant  an  injunction  in  the  first  instance,  up- 
on the  allegation  alone,  that  a  bank  has  stopped  payment,  but  to  grant  a  rule  to  show  cause, 
and  require  notite  to  be  given  to  the  defendants.  If  not  explained  or  excused  in  cases  where 
the  banks  are  not  protected  from  a  forfeiture  of  their  charters,  by  reason  of  n  failure,  the 
court  would  be  authorized  to  grantan  injuiJCtion  and  appointa  receiver.  But  when  the  banks 
are  authorized  to  suspend  specie  payments,  such  refusal  is  no!  even  prima  facie  eviilence  of 
insolvcncr.  /*• 


462  INDEX. 

17-  The  true  consiruction  of  llie  sixth  section  of  the  suspension  act  of  April  12, 1841,  is  that  Uie 
statements  should  be  made  out  and  transmitted  to  the  Secretary  of  State,  on  the  days  speci- 
fied, or  as  soon  thereafter  as  the  same  can  be  made  out  and  stated.  lb, 
IS.  By  the  general  banking  law,  the  directors  and  stoclUiolders  of  banking  institutions  associa- 
-  ted  nnder  it,  are  made  liable  for  all  deficits  in  consequence  of  insolvency.    Cook  vs.  Wheeler, 

443. 
BILL. 

Vide  PLEADING. 


c. 

CONTRACT. 

Vide,TTiA.VX),  STATUTE  OF  FRAUDS. 

1.  Inadequacy  of  price, where  it  is  so  gross  and  palpable  as  of  itself  to  appear  evidence  of  ac- 
tual fraud,  may  be  sufficient  to  induce  this  court  to  stay  the  exercise  of  its  discretionary  pow- 
er to  enforce  a  specific  performance,  and  leave  a  party  to  his  remedy  at  law  ;  but  inadequacy 
of  price  TOer«/y,  witliout  being  such  as  to  prove  fraud  conclusively,  is  not  a  good  objection 
against  decreeing  a  specific  performance.    Surtch  vs.  Hog-g-e,  31. 

2.  Courts  of  equity  do  not,  as  a  matter  of  course,  decree  specific  performance  of  contracts,  but 
exercise  a  discretionary  power,  upon  a  view  of  all  the  facts  of  the  case ;  and  the  discretion 
mustnot  be  arbitrary  and  capricious,  but  regulated  on  grounds  that  will  render  it  judicial. — 
Me3Iurlrie  vs  Bennctte,  124. 

3.  The  contract  or  agreement  sought  to  be  enforced  must  be  mutual,  and  the  tie  reciprocal,  or 
a  court  of  equity  will  not  enforce  a  performance.  lb. 

4.  The  contract,  in  order  to  be  enforced,  must  be  certain  m  all  its  essential  particulars.  lb. 

5.  The  ground  of  the  interference  of  courts  of  equity  to  enforce  specific  performance,  is  not 
simply  that  there  is  proof  of  the  existence  of  a  parole  agreement,  but  that  there  is  fraud,  in 
resisting  the  completion  of  an  agreement  partly  performed.  lb- 

6.  If  an  agreement  to  convey  real  estate  be  vague  and  uncertain,  or  the  evidence  to  establish  it 
is  insufficient,  a  court  of  equity  will  not  enforce  it,  but  will  leave  the  parly  to  his  legal  rera- 
dy  ;  and  in  order  to  take  the  case  out  of  the  statute  of  frauds,  the  acts  of  part  performance 
must  unequivocally  result  from  the  agreement  alleged.    Millard  vs.  RamsdcU,  373. 

7.  It  is  a  general  rule  that  the  Court  of  Chancery  will  not  decree  a  specific  performance  wheH 
the  remedy  is  not  mutual,  or  one  party  only  is  bound  by  the  agreement.    Hawley  vs.  Sheldon, 

420. 

S.  It  is  a  general  rule  that  a  contract  cannot  rest  partly  in  writing,  and  p.irtly  in  parole.    When 

a  contract  is  reduced  to  writing,  all  previous  parole  contracts  relating  to  the  same  matter  are 

merged  in  the  written  lontract.     Street,  vs.  Dow,  427. 

COVENANTS. 

Fide  DEED. 
Where  covenants  and  conditions  of  bonds  and  other  deeds  are  several,  they  may  be  good  in 
part,  and  void  as  the  residue.    Kirbtj,  vs.  Ingcrsoll,  172 . 

CORPORATIONS. 

P'ide,     BANKS,  FRAUD. 

1.  If  a  corporation  suffers  acts  to  be  done  which  destroy  the  end  and  object  for  which  it  was  in- 
stituted, it  is  equivalent  toa  surrender  of  its  rights.  Bank  of  Michigan  vs.  Bank  of  Brest,  108. 

2.  The  directors  are  trustees  of  the  stockholders  tor  the  purpose  of  carrying  on  the  business  of 
the  corporation,  and  not  for  the  purpose  of  winding  it  up,  and  destroying  its  existence,      lb. 

3.  Theprimary  object  of  proceeding  in  Chancery  against  failing  corporations  is,  not  for  the 
purpose  of  dissolving  the  corporation,  but  to  protect  the  assets  for  the  benefit  of  creditors.— 


INDEX.  463 

The  power  (o  decree  a  dissolution  of  (he  corporation  13  merely  incidental.    Fay  ta.  M^ie   ft 
Kalamazoo  Rail  Road  Bank,  j94, 

4.  Il  is  llie  duty  of  llic  court  to  look  into  the  condition  of  the  corporation,  before  it  (Vill  dig- 
chftrge  tlie  receiver  ;  and  make  such  order,  either  absolute  ur  conditional,  as  the  case  may  re- 
quire, /ft. 

5.  The  jurisdiction  of  tliis  court  over  corporate  bodies,  for  the  purpose  ofrestrainiitg  their  op- 
eraiiiins,  or  of  winding  up  their  concerns,  is  based  upon,  and  controlled  by  the  statutes  of  the 
slate.  Il  has  no  such  jurisJiction  at  common  law,  or  uniler  its  general  equity  powers,  and 
it  will  not  interfere,  e.\cept  when  the  case  is  f  iriy  brought  within  the  scope  and  object  of  the 
statute  conferring  this  special  jurisdiction.    AUumeij  General,  vs.  Bank  of  MicMgan. 

0-  If  a  corporation  has  forfeited  its  rights  by  misfeasance  or  nonfeasance,  such  forfeiture  must 
be  shown  by  the  pleadings  •,  it  is  not  to  be  presumed,  the  legal  presumption  is  otherwise,  lb. 

COxNSTUUCTIOX. 

Vide,    BANKS,  CORPORATIONS,  DEEDS. 

1.  Where  one  part  of  an  act  is  equivocal,  other  portions  of  the  act  may  be  resorted  to  as  a 
guide.  The  occasion  and  the  reason  of  the  enactment,  which  is  the  same  thing  as  the  old 
law,  and  the  mischief;  the  letter  of  the  act,  whether  words, be  used  in  their  proper,  or  in  a 
technical  sense-,  the  context,  the  spirit  of  the  act,  whether  statutes  be  in  their  nature  re- 
medial or  penal,  the  subject  matter  and  the  provisions  of  the  act,  and  the  intent  of  the  legisla- 
ture in  passing  it,  are  to  be  considered  ;  v.Miich  intent  is  not  to  be  collected  from  any  particu- 
lar expression,  but  from  a  general  view  of  the  whole  of  the  aet.  Attorney  General,  r«.  Bank 
of  Michigan,  313. 

D. 

DEFAULT. 

Vide.  PRACTICE. 

DECREE, 
Vide,  PRACTICE. 

dep;d. 

yiig COVEN' ANT — ESTOPPEL — FKAUD— MORTOaGE — REGISTRY — STATUE  OF  FIL1.DD9 — TRUST, 

1.  Where  a  father  executed  a  deed  to  his  daughter,  and  the  diiughter  and  her  husband  agreed  to 
support  and  maintain  the  grantor  during  bis  natural  life,  and  several  months  afterwards,  the 
grantor  having  died,  and  the  diiughterand  her  husband  having  perlbriued  their  agreement, 
upon  a  bill  filed  to  set  aside  the  deed,  to  give  effect  to  a  will  previously  made  by  the  grantor, 
il  was  held  that  the  consideration  upon  which  the  deed  was  given  was  a  good  and  valid  con- 
sideration, and  that  l!)e  deed  would  notbe  set  aside,  though  the  daughter  had  executed  a  deed 
re-conveying  the  land  to  her  father,  as   security  for  his  support,  the  deed  from  the  daughter 

to  the  father  having  been  cancelled  or  lost  by  the  father.     Goff,vs.  Thompson,  60. 

2.  A  deed  executed  liy  a/eme  covert  without  her  husband  joining  with  her  is  void.  76. 

3.  That  a  deeu  absolute  in  its  terms,  may  be  proved  by  parole  to  have  l;cpn  intended  by  the  par- 
ties to  operate  only  as  a  mortgage,  cannot  admit  of  a  doubt.     Wadsworth  vs.  Loranger,  113. 

4.  Where  L.  o'ltaine.l  from  B.  a  loan  of  S150,  for  1  year,  and  for  security  gavean  absolute  deed 
of  certain  premises,  and  B.  sqon  after  absconded,  and  L.  died,  and  the  premises  were  sold  by 
L's.  administrator  to  W.,  subject  to  the  incumbrance,  and  J.  afterwards,  with  a  full  knowl- 
edge of  all  the  facts  procured  a  deed  from  B.;  it  uas  held  that  llie  deed  from  L.  to  B.,  though 
absolute  on  its  face,  was  only  valid  as  a  mortgage  -,  and  that  J.  having  purchased  of  B.  with 
noticeof  the  facts,  could  lake  no  greater  interest  than  B.  had  in  the  premises,  and  that  W. 
was  entitled  to  redeem,  on  payment  of  the  amount  due  on  the  mortgage.  76- 

5.  The  better  opinion  seems  to  be,  that,  even  at  cnmsnon  law,  a  deed  fraudulent  in  part,  is  alto- 
gether void.    Eirbtj  vs.  Ingersoll,  ^'2, 

Vol.   I.  59 


464  INDEX. 

6.  The  consiruction  to  be  pm  upon  a  deeJ  conveying  property  illegally  is,  that  the  clause  which 
eo  conveys  It  is  voii!  equally,  whether  it  be  by  statute,  or  at  common  law.  This  is  the  rule, 
except  i.i  cases  where  the  statute  declares  the  whole  instuinent  void.  lb. 

7.  The  cases  where  instruments  have  been  declared  good  in  part,  and  bad  as  to  the  residue, 
icem  to  have  been  bonds,  which  were  variant  from  llie  statute,  or  deeds  which  purport  to 
convey  lands,  some  portion  of  which  the  party  could  not  lawfully  convey.  Jh. 

f,  A  distinction  seems  to  have  been  lalten  between  instruments  void  by  statute,  and  void  at  com- 
mon law.  i!> 

9.  One  good  trust  inserted  in  an  illegal  instrument  of  assignmem.  cannot  make  that  inslrumen 
a  valid  one.  7*. 

10.  A  grantor,  who  voluiitarily  becomes  a  party  to  a  deed  which  is  fraudulent  in  part,  forfeits 
his  right  to  claim  benefit  from  another  part  which  would  have  been  good.  lb. 

DETROIT,  CITY  OF. 

1.  Purchasers  of  lots  in  the  city  of  Deiroit  acquire  no  other  or  greater  rights  from  the  fact  that 
said  city  was  laid  out  by  the  Governor  and  judges  of  the  late  Territory  ot  Michigan,  under 
an  act  of  Congress  authorizing  them  so  to  do,  than  tiiey  would  acquire,  if  the  same  had  heen 
laid  out  by  an  individual  who  had  legally  dedicated  certain  portions  for  streets  and  alleys. 
Cooper  vs. Allien,  72. 

2.  Purchasers  of  lots  bounded  on  a  street  or  square,  acquire  a  right,  and  are  interested  in  the 
preservation  and  appropriation  of  such  street  or  square  to  the  uses  for  which  it  was  dedica- 
ted, and  the  city  corporation,  witliout  full  and  e.\press  authority  so  to  do,  have  no  power  to 
grant  any  portion  of  such  public  street  or  square  to  be  used  for  any  purpose  desirucuve  of 
the  ends  for  wliich  it  was  originaily  dedicated.  /*. 

3.  Where  laud  Is  dedicated  to  u  particular  purpose,  and  liie  city  authorities  have  appropriated 
it  to  an  entirely  different  one,  it  affords  ground  for  the  interference  of  a  Court  of  Cluuicery, 
by  injunction.  76. 

i.  The  corporation  of  the  ci:y  of  Detroit  have  no  power,  except  that  which  is  derived  from  tbe 
act  incorporating  the  same,  or  the  acts  s|)eci;illy  reiaiing  thereto.  lb. 

5.  Where  the  common  council  of  the  city  of  Detroit  granted  a  lease  of  a  portion  of  a  public 
street  in  said  city,  [though  under  a  resolution  of  a  public  meeting  o(  the  freemen  o(  the  city 
of  Detroit,  lo  the  Commissioners  of  Internal  Improvement,  for  the  use  of  the  state,  to  lay 
a  railroad  tract,  and  erect  offices,  &c.,  an  injunc:ion  was  granted  to  restrain  the  Coniniission- 
rrs  from  so  doing.  jb. 

6.  The  Commissior.erE  of  Internal  Improvement  have  no  right,  under  the  general  powers  con- 
ferred on  them,  to  appropriate  a  portion  of  a  street  in  the  city  of  Detroit,  for  the  purpose 
of  erecting  ornces  and  other  buildings  thereon.  yj. 

7.  Where  the  complainant  had  iieen  in  possession,  and  occupied  certain  premises  in  the  city  of 
Detroit  about  thirty  years,  and  had  received  a  deed  from  the  Governor  and  judges  of  the  Ter- 
ritory of  Slichigan  for  the  same,  in  the  year  1821,  and  the  city  corporation  were  proceeding 
to  open  a  street  through  ihepreniiscs,  (under  the  claim  that  the  street  was  there  originallv 
laid  out,)  and  to  remove  the  fences  and  buildings  for  that  purpose;  an  injunction  was  grtin- 
led  to  restrain  the  corporation  from  so  doing,  and  the  Chancellor  refused  to  dissolve  the  same, 
until  the  defttndanis  Fhouid  establish  their  right  at  law.    Devavx,  vs.  The  city  of  Detroit,   98. 

DU.^IURIJEK. 
Fid«— rLEADiNO — pRACiirs:. 


E. 

EXECUTION'. 

fide— IXJOKCTIO.V — JCRISriiCTION. 

An  eieruiion  rannot  be  legally  returned  unsatisfied,  until   the  return  <l;iy.     Steicard,  vf.   Stf- 
vem,  ,69 


INDEX.  405 

EVIDKNCE. 

Fidt  —  B  lUK—ConfOKATimt—VttD. 

ESTOPI'KL. 
A  p^riy  who  a(len:pi!>  to  iiiipeat-b  his  deed  in  court,  must  show  In  u  hni  hid  equity  con&lnts,  ft>t 
ut  a  question  of  law,  he  in  estopped  from  denying  his  owu  deed.     Paynt,  vt.  JlUrtxTf,  Hi. 


F. 

FKAUD. 

Fide — CONTRACT— JURISDICTION— DEED— PARTSBRSUlr. 

1.  A  party  seelvlns;  to  set  aside  a  conveyance,  on  the  ground  of  iVnud,  niUBt  be  prompt  in  com- 
uiuiiicutiiig  it  when  di-covered;  and  consistent  in  liis  notice  to  tlie  opjiosile  party,  of  theusa 
he  intends  to  make  of  it.     JDisbrow,  vs.  Jones.  102. 

2.  Where  it  appeared  ih;it  T.  hud  accused  \V.  of /or^jHjP  his  T's.  name,  to  a  subscription  for 
a  newspaper,  and  W  hadthreatenej  T  with  a  prosecution  i"ur  sinnder,  and  T,  in  order  to  set- 
tle the  matter,  had  assigned  to  VV  a  bond  and  mortgage,  upon  whicli  there  was  due  about  the 
sum  ()f  three  hundred  and  thirty-five  dollars,  and  T  afterwards  tiled  a  bill  against  W  to  liave 
tlic  bond  and  mortgage  reassigned  ;  it  teas  held,  lliat  the  assignment  was  made  without  con- 
sideration, and  W  was  direcied  liy  decree,  to  re-assign  the  bond  and  morignjc  to  T,  in  thirty 
days  from  the  service  of  a  copy  of  the  decree.     Tale,  vs.  Whitney,  143, 

3.  By  tlie  term /raai,  llic  leoal  intent  and  effect  of  the  acts  complained  of,  is  uieant.  Kirby, 
vs.  IngcTsoil,  172. 

4.  The  law  has  a  standard  for  measuring  the  intent  of  parties,  and  declares  nn  illegal  act,  pre- 
judicial ;o  the  rights  of  others,  a  fraud  upon  such  rights,  although  the  party  denies  all  iutei:- 
tion  of  committing  a  I'raud.  /j. 

3.  Where  the  Bank  of  Windsor  had  recovered  a  Judgment  against  T.  E.  for  359,000,  and  C.  & 
K.  assuming  to  act  as  tlie  agents  and  attornies  of  the  l)ai;k,  effected  a  compromise  with  T. 
K.  to  pay  620,000,  and  T.  E.  assigned  and  delivered  over  to  C.  i  E.,  as  agents  and  attorneys 
properly  :ind  securities  to  that  amount,  and  the  bank  afterwards  ticnied  the  authority  of  C.  * 
E.  to  make  the  compromise,  and  T.  E.  afierwarus  assigned  the  property  and  securities  to  1'. 
&.  R.,  and  C.  &  E.  refused  to  re-deliver  the  property  and  securities  so  assigned,  and  were 
proceeding  to  collect  and  dispose  of  the  same ;  upon  bill  filed  by  P.  A:.  R.  an  iiijunctioa  was 
granted  to  restrain  the  collection  and  disposition  of  the  properly  and  eecuritics  so  assigned, 
and  llie  Chancellor  ret'uscd  to  dissolve  the  injunction,  on  motion  todisoulve  {ai  want  of  equi- 
ty in  the  bill.    Pratt,  vs.  Campbel/,  203 

G.  A  Court  of  Equity  will  lend  its  aid  to  detect  and  redress  a  fraud,  notwiihstandiiig  the  lap»o 
of  time  ;  but  when  the  fraud  is  discovered,  ihe  parties  must  act  upon  that  discovery  within  a 
reason at)le  time.  The  party  seeking  redress  should  nut  wait  until  all  those  who  were  cog- 
nizant of  the  Irans^iciion  should  have  paid  the  debt  of  nature,  and  until  no  one  wag  left  lode 
ny  or  explain  th-;  allegations,  without  giving  any  eicuse  for  such  delay.  McLean,  vs.  Bar- 
ton, 27>. 

7.  W  and  D  being  merchants,  J  entrnstetl  ihcm  with  gondi  to  ecil  on  his  account.  W  and  D  bU 
lerwards  proposed  to  purchase  the  goods  of  J  and  convey  certain  land:-  in  payment  therefor, 
six  hundred  and  (il'iy  acres  of  wliich  they  represented  to  tie  pood  pine  lands,  averagiug  forty 
pine  trees  to  the  acre  from  two  and  a  half  to  five  tVet  through,  nnd  that  there  was  a  good  mill 
site  thereon,  wiih  six  10  eight  feet  full  of  Wfater.  J.  sold  the  goods  to  W  nnd  I»,  nnd  took  :i 
conveyance  of  the  lands,  relying  upon  the  represenintions  of  Wand  1>,  nnd  wiihout  having 
;een  the  some,  and  it  turned  out  that  the  representations  vrere  not  true,  nnd  that  there  wa« 
pine  limber  upon  but  about  one-fourlh  of  the  land,  an  i  upon  that  not  much  mere  than  one 
half  the  quantity  represented.  Upon  a  bill  filed  for  that  purpo.^e.ihe  court  dfrlarcd  the  con- 
tract rescinded,  and  decreed  a  re-delivery  of  the  remaining  portion  of  the  goiN-;<,  and  awar- 
ded to  J.,  the  complainani,  the  re-payment  to  him  of  the  valun   of  the  goodii  u  liirli  had  be*« 


466  INDEX. 

sold  by  Wand  D,  and  that,  until  the  payment  should  he  made,  J.  should  retain  a  lien  upon  the 
lands,  as  a  security  for  the  amount  due  him  tor  the  goods  which  have  heen  sold.  Jones,  vn. 
Wing,  301. 

8.  Where  the  transactions  slated  in  the  liill,  by  which  certain  notes  were  oblained,  presented  a 
case  of  fraud,  although,  from  the  case  made,  it  was  doubtful  whether  the  complainant  could 
defend  successfully  the  full  amount  of  the  notes,  and  a  general  demurrer  was  interposed; 
the  court  refused  to  sustain  tiie  demurrer,  and  required  the  defendant  to  answer.  Ankrim, 
vs.  WoodworLk,  355. 

9.  In  cases  of  fraud,  where  it  is  doubtful  whether  the  defence  would  be  good  atlaw,  the  Court 
of  Chancery  will  retain  jurisdiction.  /*• 

10.  Where  the  defentian;s  were  prevented  from  making  their  defence  at  law  by  the  acts  of  the 
plaintiff,  until  the  only  witness  by  whom  the  defence  could  be  proved  was  dead,  and  a  reson 
to  this  court,  in  consequence  thereof,  became  IndlspensLible;  It  was  held  that  the  complain- 
ants were  entitled  to  relief  In  this  court,  and  that  it  wiis  not  necessary  for  them  to  lake  an  ap- 
peal, and  then  apply  to  this  court  for  a  discovery,  in  order  to  entitle  them  to  that  relief.— 
Mack,  vs.  Duly,  266. 

11.  Where  it  appeared  by  the  bill  that  tlie  complainants  became  security  for  a  third  person,  to 
the  defendant,  on  two  promissory  notes,  and  that  the  defendant  extended  the  time  ot  payment 
three  several  times  for  ninety  days  each.vvilhout  tlie  knowledge  or  assent  of  the  sureties,  and 
the  maker  of  the  notes  at  the  time  of  the  extension  was  able  to  pay,  but,  at  the  time  lo  which 
payment  had  been  extended,  he  had  become  insolvent,  an-;  the  defendant  had  comineuced  two 
several  suits  before  a  justice  of  the  peace  to  recover  the  amount  of  the  notes  against  the 
sureties,  and  they  appeared  and  defended,  and,  after  the  testimony  was  taken,  the  defendant 
who  was  plaintiff  in  the  justice's  court,  discontinued  his  suits,  and  after  the  decease  of  the 
only  witness  on  the  part  of  the  defence,  new  suits  were  commenced,  upon  which  judgments 
were  recovered,  the  suits  being  undefended  -,  upon  demurrer,  it  was  held,  that  the  case  made 
by  the  bin  was  such  as  entitled  the  complainants  to  relief  In  equity,  and  that  it  was  compe- 
tent lor  this  court  to  afford  that  relief  In  any  stage  of  the  proceedings  as  well  afier,  as  before 
judgments  atlaw.  '  ^^' 

12.  A  party  seeking  to  set  aside  a  conveyance  on  the  ground  of  fraud,  must  be  prompt  in  com- 
municating it,  and  consistent  in  his  notice,  as  to  the  use  he  Intends  lo  tnake  of  it.  Street,  vs. 
Dow,  427. 

m.  The  directors  and  stockholders  of  bunks  organized  under  the  general  banking  law,  if 
charged  as  fraudulent  copartners,  are  equally  liable  for  tlie  entire  amount  of  tlie  indebtedness 
of  the  eoncern.     Cook,  vs.  Wheeler,  443. 

U.  Where  a  bill  is  filed  charging  defendants  as  a  voluntary  association,  conihining  to  defraud 
Euch  as  should  receive  their  nole.s,  held,  that  the  fact  that  another  creditor  has  seen  fit  to  treat 
iliemasacorporation,  and  has  fled  his  bill,  and  obtained  the  appointment  of  a  receiver  of 
their  effects  as  such,  cannot  deprive  complainant  of  his  remedy  in  this  form,  if  he  can  estab- 
lish tlie  allegations  in  his  bill.     Wheeler,  vs.  Clinton  Canal  Bank,  449. 

1.5.  Where  bill  charges  defendants  in  an  original  proceeding  as  a  fraudulent  association,  it  is 
no  ground  of  demurrer,  that  it  prays  the  appointment  of  a  receiver.  The  rules  concerning 
judgment  creditor's  bills  do  not  apply  to  such  a  case.  /&• 

16.  Courts  of  Equity  have  concurrent  jurisdiction  in  case?  of  fr.aud.  /*• 


G. 

GOVERNOR  AND  JUOCES. 

Kide,    DETROIT  <:iTY   OF 

GUARDIAN  AND  WARD. 

A  guardian  has  ibe  right  to  rollett  and  receive  money  due  to  his  ward,  on  a  bond  and  mort- 
gage in  the  e.\ercit^e  of  hi.s  discretion  aa  guardian.     Livingston,  vs.  Jonet,  i  165 


1NDF:X.  467 

H. 

HUSBAND  AND  WIFn. 

fil/e— ALIMONY— UEED. 

Aftrnt  covert  cannot  file  n  bill  ogniiiBt  her  liusltand  witlmut  prurhein  ami.   Ptllur,  vs.  Peltier.lU. 


INTERNAL  IMPROVEMENT. 

Kide — DETROIT,  CITY  OF 

INSOLVENCY. 

f-'ide—JiASK — CORPORATION. 

IN>;L"IiANCE. 

Insurance  is  a  personal  coniraci,  nnd  does  not  pass  with  the  title  o''  the  properly  insured.  Dif- 
broio,  vs.  Jones,  4?. 

INJUNCTION. 

Vide,  ADMINISTRATOR,  B.VNK,  CORPORATION,  DLTROIT,  CITY  OF,  JDRISDICTIOX,  PRACTICE,    TRCST. 

1  Where  an  injunction  and  ne-ezeal  were  iisued  ?.Iay  31,  ISjO,  and  were  returned,  served  on 
tJie  sixth  of  J  une  ;  and  the  subpoena  vv.is  net  issued  until  the  second  day  of  July  following  ; 
it  was  held,  to  be  irregular.    Peltier,  vs.  Peltier,  19- 

2.  An  injunction  granted  hy  a  justice  o'f  the  Supreme  Court,  in  cases  where  the  statute  autho- 
rizes It,  stands  upon  the  same  footing  as  if  granted  by  the  Chancellor;  and  in  either  case  it  is 
competent  for  the  defendants,  in  vacation,  and  before  they  put  in  tlicir  answer,  to  move  to 
dissolve  the  injunction  tor  want  of  equity  in  the  bill.     Cooper,  vs.  Atden,  72. 

3.  This  courtlias  undoubted  jurisdiction  lo  interfere  by  injunctiun  where  public  officers  are 
proceeding  illegally  and  improperly,  under  a  claim  of  right  lo  do  any  act  to  the  injury  of  the 
rights  of  others.  H- 

4.  An  injuneiion  staying  proceedings  in  sixty-seven  suits  commenced  in  one  day  against  the 
County  Commissioners,  before  justices  of  the  peace,  on  county  orders,  was,  on  motion  dis- 
solved, on  the  ground  tliat  their  defence  was  at  law.    Lapeer  Couuty,  vs.  Hart,  157. 

5.  Where  the  etiuily  of  the  bill  is  denied,  the  injunction,  on  motion,  will  be  dissolved,  and 
where  it  is  shown,  by  a  special  i)lea.  that  there  is  no  equity  in  the  bill,  it'is  the  same,  so  far 
as  regards  the  motion  to  dissolve,  as  though  the  equity  oftlie  bill  was  fully  denied  by  answer. 
Eldred,  vs.  Camp,  162. 

6.  On  a  motion  lo  dissolve  an  injunction,  an  affidavit  is  admissible  which  goes  lo  show  that  the 
injunction  was  irregularly  issued,  or  that  ihe  officer  allowing  the  injunction  was  misled,  and 
induced  to  gram  the  injunction  contrary  to  law.    Carroll,  vs.  Farmer's  and  Mccltaiiic's  Bank 

197. 

7.  The  statute,  (R.  S.  374,  s.  91,)  is  positive  and  peremptory  ihat  no  injunction  shall  be  gran- 
ted lo  restrain  proceedings  at  law,  when  a  cause  is  at  issue,  without  filing  a  bond  in  such  sum 
as  the  officer  allowing  the  injunction  shall  prescribe.  lb- 

i.  When  an  injunction  is  asked  lo  stay  proceedings  ut  law,  it  is  incumbent  upon  the  complain- 
ant to  siiow  in  his  bill  the  state  ot  the  pleadings,  nnd  the  court  in  which  the  suit  is  pending,  in 
order  to  enable  the  ofliier  to  whom  the  application  is  made  lor  the  allowance  of  the  in- 
jur.c  ion,  to  judge  of  tiie  propriety  of  its  allowance,  and  to  prescribe  the  terms  upon  which 
the  same  shall  be  allowed.  ^*' 

9.  Courts  of  Chancery  will  not  sustain  an  injunction  bill  to  restrain  a  suit  or  proceeding  previ- 
ously commenced  in  a  court  of  a  sister  stale,  or  in  any  ofthe  federal  courts.  lb. 

10.  When  the  complainant  had  due  notice  of  a  motion  to  dissolve  an  iujunclion,  nnd  he  neg- 
lectel  to  appear  and  oppose  ihe  motion,  the  defendant  was  permitted  to  take  his  order  dissol- 
ving the  injunction  with  costs.    Kellogg,  vs.  Barnes,  258- 

41.  The  ground,  and  ouly  ground,  on  which  injunctions  nre  granted  against  third  persons  in 


468  INDEX. 

possession  of  |)ersuiiiil  proj  eriy,  anJ  usleiisilily  i;s  rinlilful  ownerK,  upon  an  t-xjiarte  r.pyiU 
cation,  is  for  tlie  protection  ot'tlic  fund  or  property  wtien  slioun  to  Ue  in  danger,  witliout  ihla 
inierpooitlon.     Tliayer,  vs.  Sioift,  430. 

12.  Where  an  execution  was  returned  liy  the  officer  more  than  a  month  liefure  the  return  day, 
and  a  judgment  ercditor's  bill  filed  after  llie  return  day,  tlie  injunction  was  dissolved.  Slaf- 
fi/rd,  vs.  Hulbert,  435. 


J. 

JURISDICTION. 

T'idc.  ALIMONY,  B.(.NK,  CORPOR.VTIO.M.  FRAUD,  INJUNCTION,  LACHES,  PEACTICE,  PLEADING. 

1.  Tlie  Court  of  Chancery  will  not  take  jiirisdiclion  of  a  case  wJiere.  there  is  a  plain  and  ade- 
quate remeJy  at  law.    BarrovSjVs.  Doty,  1 

Q.  It  is  a  general  rule,  that  where'  tlie  bill  prays  relief  to  which  the  complainant  is  entitled,  and 
wiiich  cannot  he  had  at  law,  ii  is  sutlicient  to  give  the  Court  of  Chancery  jurisdiction  of  the 
cause.     Rincland,  vs.  Dotij,  3. 

3.  The  20ih  section  cf  the  act  of  1833,  (laws  of  Michl^-an,  page  381,)  gives  lliis  court  express 
autboriiy  to  inquire  into  and  settle  conflicting  claims  of  tilleto  land.  lb. 

i.  A  Court  of  Chancery  will  compel  a  discovery  in  aid  of  a  defence  ftlaAv  ;  nor  can  there  be  a 
doul't  that  It  will  slay  proceedings  at  law,  until  an  atit  wer  to  the  hill  for  the  discovery  can  ba 
obiained.     Wright,  vs.  King,  12. 

5.  A  Court  of  Chancery  is  not  the  appropriate  tribunal  for  the  trials  of  titles  to  land.  Devaui, 
vs.  Cityof  Delroit,  ^^• 

C.  The  jurisdiction  of  the  Court  of  Chancery,  to  apply  the  property  of  the  defendant,  which  U 
beyond  the  reach  of  an  execution  at  law,  to  thesaiisfaction  of  the  debt  due  to  the  judgment 
creditor,  proceeds  upon  the  ground  that  he  has  exhausted  his  remedy  at  law.    Steuard,  vs. 

Stevens,  ^'^^• 

7.  Courts  of  equity  have  jurisdiction,  and  will  entertain  proceedings  for  partition,  where  a  por- 
tion of  the  property  has  changed  hands,  and  the  rights  and  interests  of  the  several  parties 
havebecomecouiplicated,  and  are  in  dispute.     Thayer  vs.  Lane,  247. 

8.  The  jurisdiction  of  .this  court  to  interfere,  and  restrain  public  officers  who  are  acting  ille- 
gally to  the  manifest  injury  of  others,  is  well  se'.tled,  but  the  ground  on  which  the  court  inter 
feres  in  snch  cases  is,  to  prevent  great  or  irreparable  injury.    Brotcn,  vs.  Gardner,  291. 

9.  Upon  a  bill  filed  to  restrain  the  Commissioners  of  Highways  from  opening  a  road  through 
an  orcl.ard  of  more  than  four  years  growth,  and  the  gardens  of  the  complainant,  and,  after 
llie  injunclion  was  issued,  but  before  it  was  served,  or  the  defendants  had  had  notice  of  the 
issuing  of  the  injunction,  the  road  was  opened,  and  the  answer  denied  that  the  road  passed 
through  the  orchard  or  gardens  of  complainant,  and  where,  from  the  evidence,  it  was  doubt- 
ful whether  the  road  passed  through  an  orchard  of  the  growth  of  four  years,  and  the  injury 
was  slight,  the  court  of  Chancery  refused  to  retain  the  suit  or  close  up  the  road,  which  had 
been  laid  out,  made,  and  fenced,  and  also  refused  to  award  an  issue  quantum  damniicatus.  lb. 

10.  It  is  competent  for  this  court,  wiiere  it  has  acquired  jurisdicUon  for  the  purpose  of  granting 
an  injunction,  to  retain  the  suit  for  the  purpose  of  giving  damages  to  the  complainant  i  but 
whether  this  court  w  ill  do  so  or  not,  depends  upon  the  circumstances  of  the  case.  /*. 

11.  When  tiae  defendant  is  ignorant  of  the  fads  which  consiitute  his  defence  at  law  pending  the 
suit,  or  the  defence  could  not  have  been  set  up  as  a  defence  at  law,  it  forms  an  exception  to 
the  rule  that  equity  will  not  interfere  to  relieve  against  a  judgment  at  law.  JF^alet,  vs.  Bank 
of  Michigan.  '  ^Cf-. 

1-2.  The  court  having  obuiined  possession  of  the  case  will  retain  it  for  the  purpose  of  adjusting 
the  accounts  between  the  parties,  though  the  relief  sought  (a  specific  performance)  cannot 
be  granted.     Hawley,  vs.  Sheldon,  ^20. 

13.  This  court  will  not  entertain  a  judgment  creditors  bill,  until  the  jadgraent  creditor  has  fully 


INDEX.  468 

exhausted  his  remedy  nl  law.  It  is  this  fact  ih.-il  gives  the  court  jurisdiction  in  this  clnss  of  cn- 
ses ;  and  it  iias  liecii  repeatedly  held  llial  the  court  will  not  su.st;iin  a  hill  a-"  n  judgment  cred- 
itor's bill  uiereiy,  tiled  before  the  return  diy  of  execution,  and  it  ia  not  sulflcicnt  Hint  the  cic- 
rution  shall  have  been  aciiially  returned  before  the  return  day.     Thaijcr,  vs.  Svtitk,        430. 

H.  Courts  of  Cli;inccr>  have  held  in  every  adjudged  case  tliut  the  judgment  creditor  must  *:ho\v 
a  strict  and  rigid  coiiipliar.cc  »viiii  the  rules  and  forms  of  law,  before  they  wi:i  administer  the 
harsh  remedy  of  depriving  the  debtor  absolutely  of  all  control  over  ever)  part  and  portion 
of  his  properly.  /ft. 

1.5.  Where  a  lien  has  been  acquired  iiy  the  levy  of  a.i  e.tecutlon,or  where  there  is  an  out-^tnud- 
ing  execution  in  the  hands  of  an  offi::er,  and  a  fraudulent  o!istruction  has  been  interposed  to 
prevent  its  being  levied,  there  can  be  no  doulit  that  a  hill  may  be  filed  In  tins  court,  for  a  dis- 
covery, and  to  remove  such  oLstrujiion.  yS. 

18.  Where  remedy  at  law  is  difiTicult  and  doubtful,  Ihiscouri  will  entertain  jurisdiction.  Wlutl- 
er,  vs.  Clinlon  Canal  Bank,  449. 

17.  The  rijlit  to  tils  a  creditor's  bill  having  once  attached,  by  the  return  of  the  eiecuiion  tinsa- 
tlsfied,  tlie  party  is  not  prevented  from  coramcncing  proceedings  in  Chancery,  liy  iJie  ii^suing 
of  a  new  execution.     Clark,  v^.  f)avis,  427. 


L. 

LArv'DS  •■V.XD  LAND  TfTLE.S. 

yuif.,  ADMIXISTBATOR,    DEED,  DETROIT    CITY    OF,  JUKISDICTION,    ItECEIVPR,    REOISTKY,    STATTTE 
or  TKAUDS,   TAX  SALES   AND  TAX  TITLES,  VENDOR  AND  PCRCHASER;  V."Ll-S. 

1.  The  posKe.=sion  of  atcunnf  is  notice  to  a  purchaser  of  the  actual  inti-re,;:!  the  tenant  nr:y 
have  in  the  premises.    Dishrow.  vs.  Junes,  41:. 

2.  Afier  a  coiifirnialioii  of  a  cUiim  to  land  by  the  board  of  Land  Commissioners,  under  the  act 
of  1820,  and  patent  is-sued,  if  competent  at  all  for  this  Court  to  go  behind  the  patent  to  settle 
conflicting  claims,  it  should  only  be  done  upon  the  clearest,  and  most  irrefragable  proof.— 
Bernard,  vs.  Bougard,  ]3P_ 

3.  U'hcre  a  sale  of  real  estate  was  ordered  by  a  Judge  of  Probate,  and  it  appears  that  he  him- 
self became  interested  in  the  purchase,  the  sale  was  set  aside,  and  a  rc-.«ale  was  ordered  to 
be  made,  under  the  direction  of  the  Court.     Wallon  vs.  Torreij,  2.)!). 

4.  When  the  proprietors  of  a  village  or  town  have  dedicated  lots  fonlreets,  or  for  a  public 
square,  and  have  sold  lots  with  reference  to  such  plan,  they  cannot  resume  and  e.tercise  acts 
of  ownership  over  the  land  thus  dedicated,  whisli  will  deprive  their  grantees  of  any  privile- 
ges wh  eh  they  might  derive  from  having  such  streets  or  squares  left  open.  Bnt  in  every 
such  case,  the  dedication  for  the  purpose  claimed,  must  be  made  clearly  apparent.  Sinclair, 
OS.  Vumstock,  jOj 

5.  Where  a  lot  in  the  village  of  Adri;jn  was  granted  to  the  county  for  the  purpose  of  erectinj-i 
court  house  and  jail  tlicreon,  and  the  county  erecied  a  court  house  and  jail  on  another  and 
different  lot  in  the  same  village  -,  it  was  held  that  this  was  sufficient  evidence  of  the  refusal  of 
the  county  to  accejit  the  donation,  according  to  the  condition  of  the  grant,  and  that  it  must  in 
fact  revert  to  the  donor  ;  and  that  persons  purchasing  lots  adjoining  had  no  right  to  insist  that 
this  lot  should  be  kept  open  as  a  public  square,  or  common.  /> 

LACHES. 

Vide— FKAtV,    PRACTICE,  LI.MITATIONP  STATUTE   Or,  PLEADING. 

J.  A  pnriy  who  has  a  defence  at  law,  of  which  he  i.s  advised,  and  neglects  to  make  it,  comen 
too  late  to  this  court,  to  ask  to  be  relieved  against  the  judgment.     Barrows,  vs.  Doty,  i . 

a.  If  a  party  has  a  defence  at  law,  of  which  he  is  advised  before  the  trial,  and  neglects  to  make 
it,  or  to  apply  to  the  Court  of  Chancery  for  a  discovery,  if  neccsary  to  his  defence,  in  aid  of 
theirial  at  law,  he  is  precluded,  ant!  cannot  afterward.s  have  relief  in  tliis  rouri.  fTHffhi. 
vs.  King.  y. 


470  r^.l  INDEX. 

3.  Where  llie  conipluinanl  liail  resteil  for  sever;il  months  after  lie  liad  knowledge  of  Uie  fraiul 
complained  of,  and  unlil  the  condition  of  the  property  had  chan';eri,  before  he  took  any  steps 
to  rescind  the  contract,  this  court  refused  to  interfere,  but  left  the  complainant  to  his  remedy 
at  law.    Visbrow,  vs.  Jones,  IC^. 

4.  Where  the  action  was  not  commenced  for  upwards  of  twenty  years  after  the  right  of  action 
accrued,  and  tio  disability  or  excuse  for  the  delay  pretended,  and  no  new  discovery  of  facts 
suggested,  and  both  the  nerson  charged  w  itli  committing  the  fraud,  and  his  grantor  veredead; 
the  court  refused  to  sustain  the  suit  liy  rc;ison  ol  the  lajise  of  lime,  and  held  that  the  case 
couKI  not  be  aided  by  proof  of  facts  which  were  not  put  in  issue  by  the  pleadings.  MeLcan 
vs.  Barton,  279. 

5.  Thiscourt  will  not  relieve  against  a  judgment  at  law,  on  the  ground  of  its  being  contrary  to 
equity,  unless  the  defendant  was  ignorant  of  the  fact  in  question  pending  the  suit,  or  the  de- 
fence could  not  be  received  as  a  defence  at  law,  or  unless,  without  any  neglect  or  default  on 
the  part  of  the  defendant,  he  was  prevented  by  fraud,  or  accident,  or  the  act  of  the  opposite 
party,  from  availing  himself  of  his  defence.  This  has  been  frequently  so  decided  by  this 
court.    Mack,  is.  Duly,  366. 

LIMIT ATIONls,  STATUTE  OF. 

Vide.,  LACHES. 

1.  Whether  by  section  three  of  iJie  Kcpealing  Act  contained  in  the  Revised  Statutes,  (U.S. 
697.)  it  was  intended  to  continue  in  force  the  provisions  of  the  acts  of  limitation  repealed  by 
that  act,  where  the  time  had  "  begun  to  run."  or  whether  the  time  prescribed  in  the  Reviacd 
Statutes  was  iniended  as  the  period  at  the  expiration  of  which  the  suits  should  be  barred, 
quaere.    McLean,  vs.  Barton,  2T9. 

2.  The  statutes  of  limitations,  and  lapse  of  time,  may  be  taken  sdvantage  of  on  demurrer.     11. 

MEN. 

ride,  JURIS  DICTIO.V,  VENDOR  AND    PDRCU.VSER. 


M. 

MORTGAGES. 

Vide,  DEED,  PRACTICE,  REGISTRY,  TRDST. 

1.  Where  J,  sold  and  conveyed  certain  premises  to  H.  and  others,  for  ^20,000,  subject  to  the 
unexpired  term  of  W^.,  under  a  lease  from  J.  of  the  same  premises,  and  H,  and  others  exe- 
cuted a  inorfage  to  J.  upon  the  premises  to  secure  the  purchase  money,  and  it  was  agreed 
that.T.  should  receive  llie  rent  from  W.  so  long  as  W.  remained  in  possession  und.'^r  the 
lease,  and  that  J.  should  pay  to  H.  and  others,  the  inlerpst  on  the  ©20.000,  so  long  as  W. 
remained  in  possession,  and  the  first  instalment  of  ©4,000  became  due  on  the  mortgage,  and 
J.  proceeded  lo  foreclose  the  same,  and  the  bill  was  taken  as  confessed  as  against  the  mort- 
gagors, it  was  held  that  the  amount  due  from  J.  to  H.  and  others,  by  virtue  of  the  agreement 
to  pay  interest,  should  be  deduit^d  from  the  amount  due  on  the  mortgage,  on  J  a  reference 
was  directed  to  a  master,  to  ascertain  the  balance  due  on  the  mortgage.     Disbrow,  vs.  Junes, 

302. 

2.  AVhere  M.  gave  T.  a  mortgage,  April  11,  1&31,  as  indemnity  against  a  certain  debt  for  which 
T.wasliable,  which  mortgage  was  recorded  July  24,18.33.  and  T.  was  sued,  and  had  the 
debt  to  pay  ;  and,  April  9,  IS.3.3.  M.  conveyed  by  an  absolute  deed,  the  lot  mortgaged,  together 
with  another  lot,  to  C.  and  C,  gave  M.  an  agreement  in  writing  to  re-convey  llie  lots  lo  M. 
upon  M,'8  paying  me  amount  of  his  debt,  (about  ©150.)  due  to  C,  and  shortly  afterwards 
M.,  being  in  embarrassed  circumstances,  applied  to  C.  for  a  further  credit,  and.  in  order  to 
obtain  such  further  credit,  M,  gave  up  the  agreement  from  C.  to  re-convey,  and  C's  deed 
fromM.  was  recorded  July  20, 1833,  (being  four  days  previous  to  the  record  of  T's  mort- 
gage) and  the  writing,  or  agreement,  to  re-convey  from  C.  to  M.  was  not  recorded,  and, 


INDEX.  471 

June  20,  1d*1,  C.  conveyed  the  prrinises  lo  K.,  fur  ilic  amountduc  from  .M.  to  C,  and  June 
3,  1S35,  K.  corivfyed  to  1).  and  Vl.,il  uas  held,  ihutilie  deed  frmii  M.lo  C.  wiu  n  iiioiipa<;f.  in 
lis  inception,  and  conlinui'd  bo  to  be  (noiwillislauding  M.  liaJ  delivered  up  to  C  his  agree- 
ment to  le-convey.)  and  ouglit  to  have  been  recorded  as  such,  and  that  the  recording  of  thai 
deed,  as  a  deed,  thougli  ilic  record  was  prior  lo  tlint  of  T's  inorlgage,  could  j-ivc  it  no  priority 
over  that  mortgage.     Thumpaon,  vi,Mach,  1^0  . 

3.  Where,  in  a  foreclosure  of  a  mortgage,  hy  advertisement  under  the  statute,  a  mistake  oc- 
curs, wliicli  renders  the  proceedings  irregular  and  voidalile,  the  niorlgagce  has  a  right  lo 
waive  those  proceedings,  and  commence  de  novo,  by  advertisement  under  the  statute,  or  may 
avail  himself  of  the  right  he  had,  in  the  first  instance,  to  seek  his  reiuedy  in  this  court.  Jl- 
tcatcr,  vs.  Kinman,  *  -'■'• 

4  Where  the  assignee  of  a  mortgage  tiles  a  bill  to  foreclose,  setting  forth  the  mortgage  and  as- 
signment, he  may,  upon  the  notice  re<iuired  by  the  C2d  rule  lo  the  opposile  party,  have  an  or- 
der lo  prove  Ihe  assignment  as  an  exhibit  at  the  hearing,  under  the  provisions  of  rule  50.  Je- 
rome, vs.  Seymour,  -JJ. 

5.  Where  .\.  e.vecutes  a  mortgage  lo  B.  and  then  ?ells  the  mortgaged  premises  to  C,  subject  to 
the  mortgage,  and  under  an  agreement  ihat  C.  shall  pay  certain  notes  secured  thereby,  and 
B.  then  executes  to  C.  a  fiuitclaim  deed  of  the  mortgaged  premises,  the  premises  fire  dischar- 
ged from  tlie  mortgage  ;  ami  Ihc  efleci  is  the  same,  where  the  mortgage  has  been  assigned  by 
Ihe  original  mortgagee  to  a  third  person.    Jerane,  vs.  Scijmour,  3j7. 


P. 

PARTNERSHIP. 

^'ide,  FRAVD,  rLE.VDINtJ. 

1.  One  partner  may  bind  liis  co-partner  in  all  matters  within  the  scope  of  the  co-partnership  ; 
the  implied  authority  of  one  partner  to  bind  his  co-partner,  is  generally  limited  to  such  acts 
as  are  iu  their  nature  essential  to  the  general  objectsof  the  co-partnership.    Kirby,  vs.  [nger- 

soll,  l""'^- 

2.  One  partner  cannot  make  a  general  assignment  of  the  partnership  effects,  to  a  trustee  for 
the  benefit  of  the  creditors  of  the  firm,  without  the  knowledge  or  consent  of  his  co-partner, 
when  he  is  on  the  spot  and  might  have  been  consulted,  lb. 

3.  There  is  no  implied  authority  resulting  from  the  nature  of  the  contract  of  ro-purlnership 
that  will  authorize  one  partner  tomake  a  general  assignment  of  llift  partnership  cflccls,  with- 
out the  knowledge  or  consent  of  his  co-partner.  ■/*• 

\.  The  authority  impliedly  vetted  by  each  partner  in  the  other,  is  for  the  purpose  of  carrying 
on  the  concern,  and  uot  for  the  purpo.=e  of  breaking  it  up  and  deslroying  it.  lb. 

J.  One  partner  does  not,  by  any  implication,  confer  a  power  upon  his  co-partuer,  of  divesting 
him  of  all  interest  in,  or  authority  over,  the  concern.  H', 

C.  One  partner  may  transfer  a  portion  of  the  a5seis,  for  the  purpose  of  paying  or  securing 
debts,  or  lo  raise  means  to  carry  on  the  concern  :  but  the  power  of  divesting  entirely  one  part- 
ner of  his  interest,  appointing  a  trustee  for  both,  and  breaking  up  the  concern,  is  not  one  of 
the  powers  either  contemplated  or  implied  by  the  contract  of  co-partnership.  lb. 

1.  The  principle  upon  which  general  assignments,  by  one  partner,  have  been  declared  void,  is 
that  one  partner  has  no  authority  lo  make  a  general  assignment  of  the  partnership  effects,  in 
fraud  of  the  rights  o(  his  co-partner  to  parUcipate  in  the  distribution  of  the  partnership  ef- 
fects among  the  creditors.  l"' 

e.  As  between  bonafide  creditors  of  a  previous  firm,  and  the  separate  creditors  of  a  partner  who 
continued  (he  business,  and  was  the  sole  visible  owner  of  the  property  employed  in  trade,  and 

where  the  separate  crc.litors  had  given  credit,  reh  nig  on  the  pioperty  caiplorcd  in  Uade  for 

Vol.  I.  60 


472  INDEX. 

payment,  such  creditors  should  6e  preferre:!  to  the  creditors  of  the  previous  firm.     Topliff  vs 

^  .,     .  340. 

Vail, 

9.  Tlie  creditors  of  a  partnership  liave  a  right  to  payment  out  of  the  partnership  effects,  in  pre- 
ference  to  the  creditors  of  an  individual  partner.  •'*• 

10.  In  the  absence  of  any  agreement  to  the  contrary,  it  is  fair  to  presume  that  a  retiring  part- 
ner does  not  intend  that  the  partnerslilp  property  shall  be  used  for  the  individual  benefit  of  a 
partner  who  continues  the  business,  leaving  the  debts  of  the  firm  unpaid;  and  this  was  held 
to  be  the  presumption  where  the  retiring  partner  transferred  the  partnership  effects  to  a  part- 
ner continuing  the  business,  who  agreed  to  pay  tlie  partnership  debts,  and  gave  bond  to  that 

effect.  •'^■• 

11.  A  surviving  partner  having  the  legal  right  to  the  possession  of  partnership  property,  the 
court  will  not  deprive  him  of  that  right,  unless  upon  proof  of  mismanagement,  or  danger 
to  the  partnership  effects.     Connor,  vs. \ Allen,  Sil. 

12.  Where  one  of  several  partners  dies,  and  the  busmess  of  the  copartnership  is  carried  on  by 
the  surviving  partners,  without  the  assent  of  the  representatives,  they  have,  as  a  general  rule, 
their  election  to  demand  interest  on  the  amount  of  the  share  of  the  deceased,  or  take  a  share 
of  the  profits  ;  but  where  the  interest  of  the  deceased  partner  had  become  vested  in  one  of 
the  surviving  partners,  whs  consented  to  the  continuance  of  the  copartnership,  it  was  held 
the  rule  did  not  apply.    Millard,  vs.  Ramsddl.'',  373. 

PRACTICE. 

Vide,  AMENDMENT,  APPEARANCE,  BANKS,  INJUNCTION,  JURISDICTION,  M0RTOAGE3. 

I.  Filing  bill,  and  process. 

II.  Motions,  Petitions  and  Orders. 

III.  Supplemental  and  amended  bill,  and  dismissing  bill. 

IV.  Taking  the  bill  pro  confcsso,  and  opening  the  decree. 

V.  Amending  the  ansicer,  or  fling  supplemental  answer. 

VI.  Taking  testimony  and  other  intermediate  proceedings. 

VII.  Reference  to  a  Master,  report  and  proceedings. 

VIII.  Decree,  and  execution  thereof. 

I.  Filing  bill,  and  process. 

1.  A  creditor's  bill  cannot  be  properly  filed  until  after  the  return  day  of  the  execution  at  law, 
though  the  execution  should  be  actudlly  returned  before  the  return  day.    Steward,  vs  Stevens, 

169. 

2.  AVhere  no  preliminary  order  is  required,  it  is  not  necessary  that  bills  should  be  sworn  to 
although  the  answer  under  oath  is  not  waived.    Atwaler,  vs.  Kinman.  213. 

3.  The  service  of  a  subpoena  upon  a  defendant  out  of  the  State  is  irregular.  Pratt,  vs.  Bank 
of  Windsor,  254. 

4.  Bills  of  peace  ai  e  only  allowed  where  the  complainant  has  established  hia  right  at  law ;  or 
where  tlie  persons  who  controvert  Uie  right  arc  so  numerous  as  to  render  an  issue  under  the 
direction  of  this  court  indispensable  to  embrace  all  the  parties  concerned,  and  save  a  multi- 
;)licity  of  suits.     Lapeer  County,  vs.  Hart,  157. 

5  -The  cases  where  a  deposite  of  money  is  dispensed  with  are  where  there  is  an  uncertainly 
as  to  the  amount  vvhicli  is  due.     Schicarz,  vs.  Sears,  440. 

II.  Motions,  Petitions  and  Orders. 

1.  Where  a  defendant  is  in  contempt,  he  cannot  move  to  set  aside  proceedings;  but  where 
there  IS  merely  a  failure  on  his  part  to  comply  with  the  requisitions  of  an  interlocutory  or- 
der, he  may  move  to  disch^^e  the  order  for  irregularity.     Peltier,  vs-  Peltier,  19. 

2.  A  motion  to  open  a  defauU  tin  the  affidavit  of  the  solitciior  ihat  the  defendant  had.  as  he  bi- 
lieved,  a  good  defence  by  way  of  set-off,  to  a  part,  at  least,  of  the  amount  claimed  in  the  bill, 
was  refused,  on  the  ground  lhat  no  reason  was  shown  why  the  affidavit  was  not  made  by 
the  party  defendant,  instead  of  the  Solicitor.    Sank  of  Michigan,  vs.  Williams.  219. 


INDEX.  473 

3.  This  court  unquestionably  has  tbc  power  to  direct  the  alteraiiuii  or  correction  of  a  decree 
afier  it  has  been  enlereil,  eilhor  upon  motion  or  petition,  wlicrc  there  is  cvidcinly  n  niisloke, 
or  clerical  error.    Bales,  vs .  Garrison,  o-jl 

4.  AHidavita  are  not  admissible  to  contradict  tlic  answer,  upon  a  motion  for  the  appointment  of 
a  receiver.     Connor,  rs.  Allen,  371. 

5.  A  rule  entered  by  consent,  witliout  fraud  or  misrepresentation,  will  not  bo  vacated.  Ham- 
mond, vs.  Place,  jgi. 

a.  On  amotion  to  dissolve  an  injunction  before  answer,  tlie  allegations  in  tlie  bill  are  to  be  ta- 
ken as  true.     Schicarz,  vs.  Scars.  440. 

III.  Supplemental  and  amended  bill;  and  dUmistin^  bill. 
1  AVlierc  the  defendants  moved  for  the  confirmniion  of  u  decree  to  dismiss  the  suit,  on  the 
ground  that  the  complaitiiints  had  failed  to  comply  with  an  order  entered  under  rule  20 
for  a  copy  of  the  bii;,  and  it  appeared  that  subsequent  lo  the  default  the  defcndanis  had  tiled 
their  answer,  and  moved  (o  dissolve  the  injunction ;  it  was  held  that  the  defendants  had  waiv- 
ed their  rio;lit  lo  dismiss  the  suil  for  want  of  service  of  a  copy  of  the  bill ;  and  it  was  further 

held  that  this  being  an  application  for  a  final  decree  in  the  cause,  should  be  made  at  a  gener- 

• 
al,  and  not  at  a  special  term.     Higgins,  vs.  Carpenter,  250 

2.  AVhere  a  cause  is  in  leadiness  for  hearing  against  one  defendant,  and  there  is  another  defen- 
dant as  to  whom  the  cause  is  not  in  readiness,  the  defendant  who  has  ap[ieared  and  answer- 
ed cannot  notice  the  cause  for  hearing,  but  must  move  to  dismiss  the  bill,  for  want  of  prose- 
cution.    Graham,  vs.  Elmore,  265 

3.  If  material  facts  have  occurred  subsequent  to  the  commencement  of  Uie  suit,  the  court  will 
give  the  complainant  leave  to  file  a  supplemental  bill;  and  where  such  leave  is  given,  the 
court  will  permit  other  matters  to  be  introduced  into  the  supplemental  bill,  which  might  have 
been  incorporated  in  the  origin.al,by  way  of  amendment,  and  this  is  especially  proper,  where 
the  matter  which  occurred  prior  is  necessary  to  the  proper  elucidation  of  that  which  occur- 
red subsequent  to  the  filing  of  the  original  bill.     Graves,  vs.  Niles,  332. 

IV.   Taking  the  hill  pro  conf esse,  and  opening  the  decree. 

1.  A  regular  order  to  take  the  bill  as  confessed,  will  not  be  set  aside  upon  a  simple  aflidavit  of 
merius,  although  an  excuse  is  given  for  the  default.     Stockton,  vs,  Ji'illiams,  241. 

2.  In  such  case,  the  defendant  must  either  produce  the  sworn  answer  which  he  proposes  to  put 
in,  or  must,  in  his  petition  or  affidavit,  state  the  nature  of  his  defence,  and  his  belief  in  the 
truth  of  the  matters  constituting  such  defence.  lb. 

.3  Where  the  demurrer  of  a  party,  who  had  appeared,  signed  by  solicitors  who  had  not  ap- 
peared, was  treated  as  a  nullity  by  the  complainants,  and  a  default  was  entered  for  want  of 
an  answer,  and  it  appeared  that  the  signature  of  the  wrong  solicitors  was  put  to  the  [demur- 
rer by  mistake,  and  that  injustice  would  be  done  if  the  defendant  should  not  be  permitted  to 
answer,  the  default  was  set  aside  on  terms.    Graham,  vs.  Elmore,  265 

4.  A  decree  by  default  may  be  set  aside,  on  motion,  and  the  court  decides  the  question  on  mo- 
tion, where  the  facts  appear,  and  there  is  nothing  to  dispute  about  l^ut  the  law  of  the   court. 

lb. 

5.  The  general  rule  is,  that  when  the  answer  shows  a  ilefciice,  and  there  is  an  excuse  shown 
for  the  delay,  the  court  will  allow  the  answer  to  be  filed  on  terms.  Smith,  vs.  Saginaw  City 
Bank,  420. 

0.  The  inclination  of  the  court  is  always  to  permit  an  answer  lo  be  tiled,  if  it  discloses  a  de- 
fence, unless  there  hae  been  intentional  delay.  lb. 

V.  Amending  the   answer;  or  filing  supplemental  answer. 

1.  An  application  to  file  a  supplemental  or  amended  answer,  is  seldom  granted,  and  never,  witli- 
out the  utmost  caution,  and  when  a  just  and  necessary  cflse  is  clearly  made  out,  ijn.l  it  is  then 
generally  confined  to  a  clear  case  of  mistake,  as  lo  matter  of  fact,  and  as  to  that  only ;  and 


474  INDEX. 

llie  cDurl  is  still  more  cautious  in  s^ranling  such  an  applicalion  nflpr  a  consiileialile  lappe  ul 
lime  from  llie  filing  of  llie  bill  or  original  answer  In  tlio  case.     Graves,  vs.  7Vi7e?,  332. 

2.  Where  a  motion  was  made,  to  file  a  supplemental  or  amended  answer,  in  which  it  was  pro- 
posed to  lake  entirely  new  ground,  and  change  entirely  the  character  of  the  defence,  and  this 
not  upon  the  ground  of  any  actual  niistiike  in  a  matter  of  tact,  or  upon  any  discovery  of  new 
fads,  but  upon  the  ground  that  the  defendant  did  not  mean  to  be  understood  to  slate  as  he  had 
stated  in  his  answer  ;  the  court  denied  (he  motion.  lb. 

3  But  where  there  was  doubt  in  regard  to  the  proper  application  of  certain  moneys,  admitted 
to  have  been  received  by  the  defendant,  and  the  answer  was  obscure,  and  there  was  a  possi- 
bility that  great  injustice  might  be  done  to  the  defendant ;  the  court  granted  an  order  with  re- 
luctance, permiltinga  separate  supplemental  answer  to  be  filed,  as  to  this  [larticular,  and  ex- 
plaining this  ambiguity,  lb. 

4.  Wliere  a  defendant  had  leave  to  file  a  supplemental  answer  to  explain  certain  ambiguities  in 
his  original  answer,  and  be  incorporated  other  matters   of  defence  in  his  supplemental  an- 
swer ;  on  motion  of  the  complainant,  the  supplemental  answer  was  ordered  to  be  taken  off 
the  files.  lb. 

VI.  Talcing  testimony  and  other  intermediate  proceedings. 

1.  Where  the  agentor  attorney  of  the  complainant e.vamined  witnesses,  and  wrote  their  depo- 
sitii-ns,  and  the  conimis.'--ioner  before  whom  they  were  taken,  was  absent  from  the  ronm  sev- 
eral limes  during  the  examination,  and  the  defendant  did  not  appear  and  cross  e.xamine  the 
witnesses,  the  proceedings  were  held  lo  be  irregular,  and  the  depositions  were  suppressed.— 
Burlch,\'s.  Hogge,  31. 

2.  It  seems  that  Courts  of  Equity  will  lake  noiice  of  irregularities,  and  unfairness  in  taking  de- 
pi).=;itions,  at  any  stage  of  the  proceedings  in  the  cause,  before  hearing.  lb. 

VII.  Reference  to  a  master,  report,  and  proceedings. 

1.  The  return  of  a  Ma.ster  charged  with  the  execution  of  an  order  of  court,  showing  the  fail- 
ure of  a  person  to  appear  and  submit  to  an  examination,  as  required  by  the  order,  is  suffi- 
cient foundation  for  a  rule  to  siiow  cause  why  an  attachment  should  not  issue  for  contempt. 
Whipple,  vs.  Broicn,  436. 

'2.  The  return  on  tlie  summons,  or  the  affidavit  of  service  should  show  when  and  how  it  was 
served.  lb. 

3.  When  a  notice  was  to  appear  before  V.  a  master,  and  the  return  was  by  D.  a  master,  that 
the  defendant  did  not  appear,  held  to  be  irregular.  lb. 

Vni.   Decree   and  execution  thereof. 

1.  Where  there  are  joint  defendants,  upon  a  pro  confesso  obtained  against  one,  the  complain- 
ant cannot,  before  the  cause  is  at  ii-sue,  or  in  readiness  for  hearing,  against  the  other,  enter  h 
final  decree,  and  issue  e.\ecuiion  thereon  against  ihe  party  agrdnst  whom  the  bill  has  been  ta- 
ken as  confessed,  and  leave  the  cause  to  proceed  r.gaiiist  the  other  defendant.  Graham,  vs. 
Elmore,  265, 

2.  It  ii  the  uniform  rule,  that  a  final  decree,  or  an  interlocutory  decree,  which,  in  a  great  mea- 
sure, decides  the  merits  of  the  cause,  cannot  be  pronounced  until  all  the  parties  to  the  bill  and 
all  the  parties  in  interest,  are  before  the  court.  lb. 

3.  This  court  will  not  adjurige  upon  a  part  of  the  case;  it  will  not  make  a  final  decree  until  the 
case  IS  properly  presented,  in  such  form  as  will  enable  the  court  to  make  a  final  disposition 
of  llie  case,  and  do  jusiice  to  all  the  panics.  lb. 


INDEX.  475 

PARTITION. 

f-'ide — JURISDICTION. 

PLKADI.\(i. 

/'I'rfe— AMENDMBNT— AVrrARANCE — A(  KNOWLHDO.MKNT— lUSDANn    AMI  WIFE— .Tl'RlfPICTlOK- 
LIMITATIONS,    STA.TUTK    (IF — PRACIirF. 

I.  Parliet. 

II.  Bill. 

III.  Demurrer. 

IV.  Plea. 

V.  Anticcr. 
I.     Parties. 

1.  Wlicre  a  hill  was  filf'd  by  a  cestui  que  trust  to  setnside  a  deed  of  iiBsignmriit  as  fraudulent, 
or  to  enforce  Ihc  trust, upon  demurrer  to  tlic  bill,  it  was  held  tliat  it  was  not  necessary  lo  make 
a  company  parties  defendants,  whose  rights  accrued,  prior  to  the  execution  ofthedced  of  as- 
Kjgnnienl,  and  were  set  forth  in  the  instrument  of  ji.=signmcnt,  whicli  was  recited  in  the  hill  ; 
and  that  if  a  sale  of  the  asiiyiied  properly  should  become  necessary,  it  must  be  sold  subject 
to  the  rights  of  the  company.     Suydam,vs.  Dequitidre,  347. 

2.  Where  several  persons  were  named  as  creditors  in  a  deed  of  assignment  for  the  benefit  of  cre- 
ditors and  a  bill  was  fded  byjsoine  of  the  creditors, for  whose  benefit  the  assignment  was  made 
to  set  aside  the  assignment  as  fraudulent,  or  enforce  tlie  trust,  and  the  bill  set  out  the  assign- 
mentand  staled  that  all  the  debts  due  to  the  creditorsjiamed  in  it,  e.£ceptllie  complainants,  had 
been  paid  up  and  extinguished  ;  upon  demurrer  to  the  bill,  it  was  held  that  it  was  not  neces- 
sary to  make  those  persons  whose  debts  werestateil  to  have  been  paid  and  satistied,  parties 
to  the  bill.  lb. 

3.  Where  a  mortgage  had  been  assigned  lo  S.  in  trust  for  several  individuals,  it  was  held  not 
necessary  to  make  the  cestuis  que  trust  parties,  to  u  bill  lllcd  lo  foreclose  it.  Sill,  vs.  Ketch- 
urn,  423. 

4.  G'es/«is  juc  <rus/ are  not  necessary  parlies,  when  the  only  object  of  the  suit  is  lo  reduce 
the  property  into  possession.  lb. 

5.  Where  the  object  of  the  bill  is  merely  to  collect  money,  or  reduce  it  to  possession,  it  is  not 
necessary  for  an  assignee,  cither  of  a  bond,  note,  or  cJiose  in  action,  lo  make  the  ccsluis  que 
trust  parties,  although  the  rule  is  otherwise,  where  the  existence  or  enjoyment  ot  trust  pro- 
perly is  to  be  affected  by  the  prayer  of  the  hill.     Cook,  vs.   Wheeler,  443. 

6.  A  bill  may  be  sustained  against  dilferent  persons,  relative  lo  matters  of  the  same  nature,  in 
which  all  of  the  delendanis  were  more  or  less  concerned,  though  not  jointly  in  each  act. — 
H'/ieeUr,rs.  Clinton  Canal  Bank,  449. 

II.     Bill. 

1.  Where  the  bill  seeks  a  discovery  in  aid  of  proceedings  al  law,  the  rule  is  that  the  complain-' 
am  must  charge  in  his  bill  that  the  facts  are  known  lo  the  defendant,  and  ought  to  be  disclos- 
ed by  bim,  and  (hat  the  complainunt  is  unable  lo  prove  ihem  by  other  testimony ;  and  it  must 
be  affirmatively  suited  in  the  bill  that  the  facts  sought  to  be  discovered  are  inaterialfor  such 
purpose.     Carroll,  vs.  Farmer's  and  Mechanic's  Bank.  197. 

*2.  A  creditor's  bill  must  contain  the  averments  required  by  the  ICUth  rule,  and  tliose  averments 
must  be  sworn  lo  ill  the  jurat.     Clark,  vs.  Davis,  227. 

3.  A  bill  may  be  filed  as  well  to  reach  mere  equitable  interests,  as  in  aid  of  an  execution  at  law; 
and  such  a  bill  is  not  multifarious.  [it. 

III.     Demurrer. 

1.  A  general  demurrer,  for  want  of  cquiiy,  cannot  be  sustained,  u.iless  the  court  is  satisfied  that 
no  discovery  or  proof  properly  called  for  by,  or  founde<I  on  ihe  allegations  in  the  hill,  can 
make  the  subject  ^matter  of  the  suit  a  proper  case  for  eiiiiiiable  cognizance.  Clark,  vs. 
Davis,  227. 


476  INDEX. 

•2.  Wliere  a  new  c;iase  of  dciiiurrer  is  assigned,  ore  tenus,  llie  cause  must  be'co-extensive  witli 
the  demurrer.  Ih. 

n.  Wliere  a  denuirrer  is  to  tlie  whole  discovery  and  relief  prayed  by  the  bill,  if  llie  complain- 
ant is  entitled  to  any  part  of  the  relief,  tlie  demurrer  nuistbe  overruled.     Thayer,  vs.  Lane, 

247. 

4.  Tlie  allegations  in  a  bill,  upon  demurrer,  are  taken  to  be  true.     Wales,  vs.  Bank  of  Miehi- 

f'an,  301. 

IV.     Plea. 

1.  A  plea  of  a  former  suit  pending  in  another  court  for  Ihe  same  action,  must  set  forth  the  ge- 
neral character  and  objects  of  the  former  suit,  and  the  relief  prayed  for.  Bank  of  Michi- 
gan, vs.   Williams,  219. 

2.  A  defendant  may  plead  to  one  part  of  the  bill,  and  answer  to  another  part;  but  these  defen- 
ces must  clearly  refer  to  separate  and  distinct  parts  of  the  bill.  Clark,  vs.  Saginaw  City 
Bank,  240. 

3.  'NVhcn  the  answer  and  plea  are  to  the  same  parts  of  the  bill,  the  answer  overrules  the  plea, 

lb. 

4.  A  plea  of  a  staled  account  must  aver  the  accounts  settled  nil  dealings  between  the  parties, 
Ihat  the  account"  were jtts/,  and/air,  and  due;  and  these  averments  must  be  supported  by 
an  answer  to  the  same  effect.     Schicarz  vs,  Wendell,  395. 

5.  A  plea  of  a  release,  unsupported  by  an  answer,  is  insulficicnt.  ]b. 

V.      Answer. 

1.  Where  an  allegation  is  made  in  the  bill  with  divers  circumstances,  tlie  defendant  should 
not  by  his  answer  deny  the  allegation  literally,  as  laid  in  the  bill,  hut  should  answer  llie 
point  of  substance  positively  and  certainly.    Junes  vs.  IVing,  301. 

2.  Where  the  complainant  alleged  in  his  bill  a  right  to  certain  shares  of  partnership  property 
purchased  of  one  of  the  partners,  and  the  defendant  denied  his  right,  and  by  way  of  avoid- 
ance,set  up  an  independ  ent  contract,  to  show  himself  entitled  to  ono-balf  of  the  shares,  the 
answer  was  AeW  as  not  coming  within  the  rule  of  being  directly  resppnsive  to  the  allega- 
tions of  the  bill,  and  that  the  new  con;ract  set  out  should  be  proved.    Millard  as.  Ramsdell, 

373. 

3.  AVlicre  the  ans^ver  admitted  a  deed  referred  to  in  the  bill,  and  slated  no  fact  which  invali- 
dated it,  but  denied  generallly  its  validity,  it  was  held  to  be  insutficient ;  that  it  was  swearing 
to  a  conclusion  the  deed  itself  denied,  when  it  should  have  staled  the  facts  which  made  the 
deed  invalid,  so  the  court  could  pass  upon  them.     Payne,  vs.  Jitcrbury,  414- 


R. 

•  RECEIVER. 

P''ide — BANKS — CORPORATIONS— FRAUD. 

1.  Where,  from  the  answer  itself  there  is  a  strong  presumption  against  the  defendant's  title, 
which  is  impeached  by  the  bill,  the  court  will  grant  a  receiver.     Payne,  vs.  Jtterbury,    414. 

2.  Nothing  can  be  clearer,  both  in  law]  and  equity,  and  from  natural  justice,  than  that 
the  complainant  is  entitled  to  the  rents  and  profits  from  the  time  his  title  accrued  ;  and  the 
case  is  still  stronger  where  there  arc  large  outstanding  incumbrances,  and  no  part  of  the 
rents  and  profits  is  applied  to  keep  down  the  interest,  and  the  defendant  is  totally  irresponsi- 
ble, and  is  holding  over  against  his  own  deed.  In  such  a  case,  the  complainant  is  entitled  to 
a  receiver.  ^*' 

3.  A  receiver  will  be  appointed  in  behalf  of  a  vendor,  as  against  a  vendee  who  has  obtained 

possession,  and  refuses  to  pay  the  purchase  money.  lb. 

REGISTRY. 

r'Jie— DEED— MORTQ.VOE. 

1.  Where  a  party  claims  priority  under,  or  by  virtue  of  the  statute,  regulating  the  registry  of 


INDEX.  477 

deeds  and  morlgages,  lie  must  sliovv  a  compliance  willi  i(s  provisions,  in  order  lo  enlille  liini 
lo  such  priority.     Tlmmpson  vi.  Mark,  150. 

2.  The  acl  of  April  12,  1?37,  enlilled  "an  act  concerning  inorlgages,"  prescribes  the  manner  in 
•  which  mortgages  may  be  registered,  and  being  an  act  e.vpressly  in  relation  to  mortgages,  and 
general  in  iLs  leniis,  is  not  controlled  in  relation  to  the  record  of  iiiortg.-igcs  by  the  act  of  the 
game  date,  entitled  "an  act  concerning  deeds  and  conveyances ;"  and  therefore,  where  a  mort- 
gage was  registered  according  to  Uie  requirements  of  the  Jirst  mentioned  acl,  it  was  hold  to 
be  a  legal  and  valid  registry,  and  constructive  notice  under  the  stiitute  to  a  subsequent  mort- 
gagee or  grantee  of  the  same  premises.     Weed  vs.  Lyon,  3G3. 


•    s. 

STATUTES. 

r»(ie— BANKS — CONSTRUCTION— IXJUNCriO.N—JURlSDIfriON—IJMrrATIONS,     STATITE    OF— REOIS- 

STRY. 

STATUTE  OF  FRAUDS. 

FJ<Ze— CONTRACT— DKED—FRArn. 

1.  To  take  the  case  out  of  the  statute  of  frauds,  ihc  terms  and  conditions  of  the  trust  must  be  in 
writing  under  the  hand  of  the  party  to  be  charged,     ff'rishl  vs.  King,  Vi. 

2.  Where,  under  a  parole  agreement  to  convey  land,  the  purchase  money  has  been  paid,  pos- 
session taken,  and  valualilc  iiiiprovcinenls  made,  it  was  held  to  be  sufficient  to  take  the  case 
out  of  Ihc  statute  of  frauds.    Diirtck  vs.  Hogge,  31. 

3.  Where  it  appeared  that  A. [agreed  to  purchase  of  U.  a  certain  tract  of  land,  and  pay  ©150  lor 
the  same  ;  that,  at  the  time  of  the  agreement,  A.  paid  15.  ®sO  ;  that  U.  had  surveyed  the 
land,  and  put  A.  in  possession  ;  that  \.  had  resided  on  the  land  for  several  years,  and  made 
improvements  to  the  value  of  from  ©200  to  ©500  •,  held  that  these  were  such  acts  of  pan 
performance,  as  lo  take  the  case  out  of  the  statute  of  frauils,  and  to  authorize  a  decree  for  a 

specific  performance  lo  convey,  upon  payment  of  the  balancs  of  the  purchase  money  with 
interest.     Bomier  vs.  Caldicell,  OT. 

4.  If  a  party  sets  up  part  performance,  to  take  a  case  out  of  ihc  statute  of  frauds,  he  must 
showacli  unequivocally  referring  to,  and  resulting  from  that  agreement,  such  as  the  party 
would  not  have  done,  unless  on  account  of  that  very  agreement,  and  with  a  direct  view  to  its 
performance  ;  and  the  agreement  set  up  must  appear  to  be  the  same  wiili  the  one  partly  per- 
formed ;— there  must  be  no  uncertainty  or  equivocation  in  the  case.     McMurtrte  vs.  Bennettc. 

121. 
5-  It  seems  now  to  be  held,  that  the  paymenlof  the   if /lo/c  of  the  purchase  money,  clearlv  in 
pursuance  uf  a  definite  and  mutual  parole  agreement,  is  sutiicienito  take  the  case  out  of  the 
statute  ;  but  it  has  uniformly  been  held  that  the  payment  of  a  trifling  amount  of  the  consider- 
ation, is  in  no  case  of  itself  sufficient.  /j 

SPECIFIC  PERF0I5MANCE. 

Vide — CONTRACT. 

STREETS-PUBLIC. 

f/rfc— DETROIT  CITY  OF— LANDS  AND  LAND  TITLtS. 


TAX  SALES  A.\U  TAX  TITLES. 

1.  The  right  lo  sell  lands  for  taxes,  under  the  a»t  of  1S27,  (laws  of  Michigan,  page  377,)  i., 
founded  on  the  fact  of  the  non  payment  of  the  tax;  and  a  sale  made, after  the  lax  has  been 
paid,  is  unauthorized,  and  the  treasurer's  deed  on  such  sale  conveys  no  esUite  or  title  what- 
ever.    Roicland  vs.  Doty,  •> 

2.  The  collector's  return,  tliat  the  tax  has  not  been  paid,  is  such  cvidciue  only,  of  non-payment, 
a«  to  justify  the  treasurer  in  selling  ;   and  the  treasurer's  deed  on   such  sale  is  "conclusive 


478  IMDEX. 

evidence'  only,  ol  the  lad  Ihat  llie  sale  by  /ihn  was  regular,  according  to  tlie  provisions  ol 

the  act.  lf>. 

3.  A  party  claiming  to  liave  paid  the  tax  before  sale,  Is  not  precluded  by  llie  treasurer's  deed 

but  may  go  behind  it  and  show  that  fact.  lb. 

TRUST. 

Vide — DEED — PLEADINO. 

1.  To  raise  a  trust  by  implication,  tliere  must  be  an  actual  payment  of  money. —  Wrigkl,  vs. 
King.  1"^  • 

2.  A  resulting  trust  only  exists  where  the  actual  payment  of  the  purchase  money  is  clearly 
and  distinctly  proved.  Payment  of  a  part,  and  not  Uie  whole,  will  not  raise  a  resulting  trust. 
— Bernard  vs,  Bougard.  130. 

3.  A.,  on  the24thday  of  October,  1830,  made  an  absolute  assignment  of  certain  real  andpei- 
sonal  estate  to  D.,  for  the  purpose  of  paying  his  debts,  as  designated  in  schedules  attached  to 
the  deed  of  assignment,  directing  the  trustee  to  sell  all.llie  properly  assigned  at  private  or 
public  sale  within  two  years  ;  and  D.  having  accepted  the  trust,  by  signing  the  deed,  but  never 
having  taken  possession  of  the  property,  or  sold  or  disposed  of  any  part  thereof,  or  done  any- 
thing towards  carrying  Die  objects  of  the  trust  into  execution  witlilnthe  two  years,  uprn  a  bil 
filed  by  S.  and  others,  creditors  of  A.,  and  for  whose  benefit  in  part  the  assignment  was  made, 
for  the  purpose  of  coercing  the  application  of  the  property  assigned,  to  the  purposes  express- 
ed in  the  deed  of  trust,or  have  the  same  set  aside  and  vacated  ;  it  was  held  that  the;bill  was  not 
prematurely  filed,  and  that  the  complainants  had  a  right  to  institute  proceedings,  In  this 
court,  to  enforce  the  execution  of  the  trust,  or  set  aside  the  deed.  It  was  further  held  that 
the  deed  of  trust  being  absolute  in  its  terms,  and  the  trustee  having  accepted  the  trust,  the 
property  assigned  was  dedicated  to  the  purposes  of  the  trust,  although  the  deed  was  made 
without  the  knowledge  or  concurrence  of  the  cfs/ai  que  trust.  Suydamvs.  Dequindre.    347. 

4.  Where  the  conveyance  is  absolute,  vesting  the  properly  in  the  assignee,  no  express  assent 
of  a  cestui  que  trust  is  required.  Tile  relation  oi"  trustee  and  cestui  que  trust  is  constituted  nt 
once  on  the  e.xecution  of  the  deed,  and  cannot  afterwards  be  revoked,  except  upon  the  ex- 
press dissent  of  the  cestui  que  trust.  i^- 

5.  It  makes  no  diflercnce  whether  goods  are  converted  into  money  or  not ;  trustees  are  equal- 
ly responsible  to  creditors,  whose  righls  to  the  goods  or  their  proceeds  are  established  ;  and, 
if  the  proceeds  be  paid  away  by  the  trustees,  pendente  lite,  they  are  lield  responsible;  and 
where  there  is  no  allegation  that  the  trustees  are  insolvent,  transient,  or  irresponsible,  or 
the  fund  is  in  a  hazardous  condition,  an  Injunction  will  not  be  granted  or  sustained.  Thay- 
er v».  Swift,  430. 

V. 

VENDOR  AND   PURCHASER. 

Vide — DEED — LANDS   AND  LAND  TITLES. 

1.  The  vendor  of  real  estate  has  an  equitable  lien  upon  the  same  for  purchase  money,  where 
there  is  no  security  for  its  payment  taken.     Carroll  vs.  Van  Rensselaer,  223. 

2.  A  vendee  who  has  paid  the  purchase  money  punctually,  has  a  lien  as  against  the  vendor, 
analogous  to  that  of  a  vendor  against  a  vendee  who  has  not  paid  the  purchase  money.  Payne 
vs.  Atttrburij,  ^"' 


w. 

WILL. 

1.  The  provision  in  a  will  that  the  estate  shall  remain  undivided  until  the  youngest  of  the  de- 
visees becomes  ofthe  age  of  twenty-one  years,  is  not  such  a  limitation  as  will  inhibit  any 
one  ofthe  devisees  from  conveying  his  interest  in  the  premises.     Walton  vs,  Torrey,       239 

3.    Provisions  in  restraint  of  alienation  are  not  to  be  favored.  •'*• 

THE   END. 


I  ",11 »  ATA. 

lor    ■•iiiiurliiiig,"  roail  "iiicuiiibcriiig." 

"     "vurioMl"  reuci  "vurianl." 

"     "prima  facia,"  read  "prima  facie,"  iju^sitn, 

"     "Rules,"  road  ''Hule's." 

"    " Hardicick,"  read  " //ardicicke." 

"     "decide^d,'' read  "decided." 

of  the  sUiiemem  of  the  ease,  insert  •'^UC  before  •'\va.'<." 
dele,  "at  amicis  curiae." 
insert  '-married"  liefore  "women." 
"    "eft'ectiiif,',"  read  "uffeeting." 
"    "losely,"  read  "loosely."' 
"     "debctojustilice,"  read  "dcbitojiistitiac." 

after  "e.<utte"  insert  "of." 
"     "l.arnard"  read  "Lamed." 

from  holtoni  of  the  jiaye  for  ".<eiy.iirl','  read  ••teisin    ' 
"     "<;r.''il  or"  read  "grantor." 
"     "realilv"rea(l  "realty." 
"    "efTecfread  "afleel." 
"    '•lhe"read  "she." 

before  "chancery"  insert  "court  of." 

before  "court"  in.scrt  "the." 
"    "perfoni"  reail  "])erforui." 

before  "was"  insert  "that  it." 
"     "therefore"  read  "iherefor." 
"     "Dccunclier"  read  "Uecoache." 
"     "a  trustee"  read  "irusiees." 
"    "incohale"  read  "inchoule." 
"     "turpc"  read  "turpi." 
"    "-Humps"  read  " ISumpus." 
"     "where"  read  "were." 

from  tlie  bottom  of  the  page,  for  "assesl"  reud  "ussets.' 
"     "asscsL"  read  "assets." 
•'    "M.S.  S."  read  ".=M.  S." 
"    "Lam  vs.  Dwant"  read  "Lamb  vs.  Durum." 
"     "intended"  read  "ccnlended." 
"    "Waki.kr"  read"WAi.KEH." 
"    "analagous"  read  "analogous." 

from  bottom  of  page,  for  "3Iii.ls"  read  "Milks  " 
"     "establishes"  read  "establish." 
"    "complainant"  read  "defendant." 

dele  "with"  before  "leave." 
"    "frauJently"  read  "tVaudulenlly." 

of  statement  of  the  case,  for  "agreement,"  rend  ''argument." 
"     "injiisiice"  read  "injustice." 

omit  the  last  line. 
"    "in"  read  "on" 

"    "interleventory,"  read  "interlocutory." 
"     "and  when"  read  "when  there  are." 
"     "quarc"  Tn-M\"ijuacre." 
"     "murlina"  read  "materia." 

end  the  sentence  at  "represented,"   and  insiead  of  Ihp  period   aflt?i 
"purpose"  insert  a  comma. 
"    "slaianiem"  read  statement." 
"    "bond"  read  "laud." 

dele  "tliat." 
"    "understanding"  read  "  undertaking" 
"    "frivilous"  read  "frivolous." 
"    "  seperate"  read  "  separate." 
"     "  Irasl"  read  "  trust." 
"     "  princip"  read  "  principal." 
-  30,  for  "  slaluory"  read  "  statutory." 
'27,    for  "irregularity,  is"  read  "irregularities." 

"accept"  read  "  e.xcepl." 

"  oiginal"  reail  "  original." 

"or"  read  "on." 

"  inevilallie"  read  "inevitable." 

"satisfy"  read  "ratify." 

"  case's"  read  "  case." 

"  dicta"  read  "  dictum." 

dele  the  ]>criod  after  "  available." 

in  the  marginal  title,  for  "  Aulberl"  read  "  Uulbert." 
dele  the  wiiole  of  the  fourth  line. 

"testimoy"  read  "  testimony," 

"  argree"  read  "  agree." 

instead  of  the  period  after  "representations."  .nseri  n  comma 

dele  "  thai." 

insert  "that"'  before  "from," 

"cestui"  read  "  cesluis." 

"  Newooeb"  read  "Nkwcomb," 

"invidual"  read  "individual." 

*^*  There  are  doubtless  ninny  trilling  errors  not  iioln-ed  in  ilic  above  li.sii.  .\itcniini)  ha.^ 
been,  in  general,  directed  only  to  (he  more  important  ones  It  is  believed  that  the  list  emliinca 
nearly  all  of  these,  but  some  may  have  escaped  notice. 


Cage    4  Line  10, 

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do  110  do 

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do  111  do 

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